HB0467

HOUSE BILL 467

51st legislature - STATE OF NEW MEXICO - first session, 2013

INTRODUCED BY

Nate Gentry

AN ACT

RELATING TO HIGHER EDUCATION; REQUIRING REGISTRATION BY THE HIGHER EDUCATION DEPARTMENT OF PRIVATE COLLEGES AND UNIVERSITIES THAT ARE REGIONALLY ACCREDITED; COMPLYING WITH UNITED STATES DEPARTMENT OF EDUCATION REQUIREMENTS.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

SECTION 1. Section 21-23-2 NMSA 1978 (being Laws 1971, Chapter 303, Section 2, as amended) is amended to read:

"21-23-2. PURPOSE OF ACT.--The purpose of the Post-Secondary Educational Institution Act is to improve the quality of private post-secondary education, to prevent misrepresentation, fraud and collusion in offering educational programs to persons over the compulsory school attendance age and to protect consumers enrolled in private post-secondary educational institutions when those schools cease operation or fail to meet standards of quality established by the [commission] department."

SECTION 2. Section 21-23-3 NMSA 1978 (being Laws 1971, Chapter 303, Section 3, as amended) is amended to read:

"21-23-3. DEFINITIONS.--As used in the Post-Secondary Educational Institution Act:

[A. "commission" means the commission on higher education;

B.] A. "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;

[C.] B. "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, master's or doctoral degree or comparable confirmation of completion of the curriculum;

C. "department" means the higher education department;

D. "license" means a written acknowledgment by the [commission] department that a career school or nonregionally accredited college or university has met the requirements of the [commission] department for offering a formal educational curriculum within New Mexico;

E. "post-secondary educational institution" includes 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 from a physical site in New Mexico, through distance education, correspondence or in person; and

F. "registration" means a written acknowledgment by the [commission] department that a regionally accredited college or university has filed pertinent curriculum and enrollment information, as required by the [commission] department, and is authorized to operate a private post-secondary educational institution."

SECTION 3. Section 21-23-4 NMSA 1978 (being Laws 1971, Chapter 303, Section 4, as amended) is amended to read:

"21-23-4. EXCEPTIONS.--

A. The Post-Secondary Educational Institution Act does not apply to or affect:

(1) 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;

(2) an occupational, trade or professional school operating pursuant to any New Mexico occupational licensing law;

(3) a course of instruction provided by an employer to its own employees for training purposes;

(4) institutions that exclusively offer education that is solely avocational or recreational in nature;

(5) 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;

[(6) a regionally accredited college or university that is a private institution that provides an academic education comparable to that provided by public colleges or universities;

(7) proprietary schools as defined in Section 21-24-2 NMSA 1978;

(8)] (6) chartered, nonprofit religious institutions whose sole purpose is to train students in religious disciplines to prepare them to assume a vocational objective relating primarily to religion;

[(9)] (7) institutions that exclusively offer instruction at any level from preschool through the twelfth grade;

[(10)] (8) an institution funded in full or in part by an Indian tribe or pueblo in the state of New Mexico; and

[(11)] (9) 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. An institution, school or program described in this section shall not be entitled to an exemption unless it presents satisfactory evidence to the [commission] department that it qualifies."

SECTION 4. Section 21-23-5 NMSA 1978 (being Laws 1994, Chapter 108, Section 6, as amended) is amended to read:

"21-23-5. DUTIES OF THE [COMMISSION] DEPARTMENT.--

A. The [commission] department is charged with oversight of all private post-secondary educational institutions operating within the state.

B. The [commission] department shall provide for the registration of all regionally accredited colleges and universities operating in the state pursuant to the Post-Secondary Educational Institution Act.

C. The [commission] department shall provide for the licensure of all career schools and all nonregionally accredited colleges and universities operating in the state pursuant to the Post-Secondary Educational Institution Act."

SECTION 5. Section 21-23-6 NMSA 1978 (being Laws 1994, Chapter 108, Section 7, as amended) is amended to read:

"21-23-6. REGISTRATION OF COLLEGES AND UNIVERSITIES--SUBMISSION OF MATERIALS.--

A. Every college or university operating in New Mexico that is regionally accredited or seeking regional accreditation by an accrediting agency approved by the [commission] department shall register with the [commission] department.

B. A college or university registering with the [commission] department pursuant to this section shall provide curriculum and enrollment information, financial information and all publication materials requested by the [commission] department.

C. A college or university registering with the department shall adopt a procedure for the resolution of student complaints.

D. A college's or university's registration is valid for the same period as its grant of regional accreditation from its accrediting agency."

SECTION 6. Section 21-23-6.1 NMSA 1978 (being Laws 1994, Chapter 108, Section 8, as amended) is amended to read:

"21-23-6.1. LICENSURE OF CAREER SCHOOLS--LICENSURE OF CERTAIN COLLEGES AND UNIVERSITIES.--

A. A career school or nonregionally accredited college or university operating in New Mexico shall be licensed by the [commission] department. It is unlawful to operate a

career school or nonregionally accredited college or university without first obtaining a license from the [commission] department.

B. A college or university operating in New Mexico that is not regionally accredited or is not seeking regional accreditation by an accrediting agency approved by the [commission] department shall be licensed by the [commission] department in the manner provided for career schools or other nonregionally accredited colleges or universities. It is unlawful to operate a college or university that is not accredited or seeking accreditation by an accrediting agency approved by the [commission] department without first obtaining a license from the [commission] department.

C. No person other than an employee of an institution licensed pursuant to this section shall, for a salary or fee, solicit attendance at that institution."

SECTION 7. Section 21-23-6.2 NMSA 1978 (being Laws 1994, Chapter 108, Section 9, as amended) is amended to read:

"21-23-6.2. LICENSURE STANDARDS--REQUIREMENTS--FEE AUTHORIZATION.--

A. Every career school and nonregionally accredited college and university operating in the state shall annually apply to the [commission] department for licensure. The career school and nonregionally accredited college or university shall apply on forms approved by the [commission] department, shall supply all information requested by the [commission] department and shall pay an annual licensure fee set by the [commission] department.

B. The [commission] department or its designee shall consider information submitted by the career school and nonregionally accredited college or university, information from independent accreditation bodies and information gathered during visits to the career school and nonregionally accredited college or university in determining eligibility for licensure.

C. The [commission] department shall promulgate and file, in accordance with the State Rules Act, rules that:

(1) require each career school and nonregionally accredited college and university to supply annually information regarding enrollment, program completion by students, employment and other educational placements of students and operating revenue budgets;

(2) provide standards and methods for the evaluation and appraisal of career schools and nonregionally accredited colleges and universities;

(3) provide for a tuition refund policy;

(4) require maintenance of adequate records by each career school and nonregionally accredited college and university and provide reasonable availability of records for inspection;

(5) regulate the use of deceptive and misleading advertising and determine what information shall be furnished each student prior to enrollment;

(6) assure that any career school or nonregionally accredited college or university licensed pursuant to the Post-Secondary Educational Institution Act has entered into a teach-out agreement with at least one other private or public institution operating in the state unless the [commission] department determines that such an agreement is not feasible;

(7) provide standards for the award of associate, baccalaureate, master's and doctoral degrees;

(8) require all degree-granting schools to seek appropriate external accreditation by an agency recognized by the federal department of education as a means of assuring quality instruction;

(9) name an advisory committee of education providers and consumers, including owners and operators of career schools and nonregionally accredited colleges and universities;

(10) provide for the maintenance of records for career schools and nonregionally accredited colleges and universities no longer in operation;

(11) provide standards for the evaluation of the financial stability and ability to meet the commitments of career schools and nonregionally accredited colleges and universities;

(12) require each career school and nonregionally accredited college and university to adopt a procedure for the resolution of student complaints; and

(13) establish other requirements necessary to carry out the provisions of the Post-Secondary Educational Institution Act.

D. The [commission] department may solicit information pertaining to the financial history and stability of a career school or nonregionally accredited college or university and its owners, including information pertaining to actions of bankruptcy filed within the immediately preceding five years. The [commission] department may consider such information in determining eligibility for licensure."

SECTION 8. Section 21-23-6.3 NMSA 1978 (being Laws 1994, Chapter 108, Section 10, as amended) is amended to read:

"21-23-6.3. FEE AUTHORIZATION.--

A. The [commission] department may establish initial application fees for all colleges, universities or career schools seeking to operate in New Mexico. The initial application fee shall be not less than two hundred dollars ($200) or more than five thousand dollars ($5,000). In setting the fee, the [commission] department shall consider the projected revenue of the institution and the projected cost of performing the review.

B. The [commission] department may establish an annual licensing fee for all career schools or nonregionally accredited colleges or universities licensed by the [commission] department. The licensing fee shall be proportionate to each school's gross annual tuition revenue; provided the fee shall be not less than two hundred dollars ($200) or more than five thousand dollars ($5,000).

C. The [commission] department may charge a reasonable administrative fee not to exceed the actual cost of providing the administrative service.

D. All fees imposed and collected by the [commission] department shall be deposited in the post-secondary educational institution fund."

SECTION 9. Section 21-23-7 NMSA 1978 (being Laws 1971, Chapter 303, Section 7, as amended) is amended to read:

"21-23-7. CLAIMS--LIMITATIONS--APPEALS.--

A. Any person having a claim against a college, university or career school registered or licensed by the [commission] department or that college's, university's or career school's agents, instructors or other personnel shall first seek resolution of the claim with the college, university or career school; thereafter, a person may file a verified complaint with the [commission] department, setting forth the basis of the claim and the name and address of the college, university or career school complained against and any other persons involved or having knowledge of the claim. All claims shall be limited to the amount of tuition actually paid or to any charge or fee received by the college, university or career school or its agents or employees.

B. Upon the receipt of a verified complaint, the [commission] department or its authorized employee shall attempt to resolve the claim outlined in the complaint. The [commission] department or its authorized employee may convene a hearing and shall give written notice to the college, university or career school and to all persons involved of the hearing and its time, date and place. The notice shall state that the hearing is an informal one for the purpose of determining the facts surrounding the claim and, if the claim is correct, to effect a settlement by persuasion and conciliation.

C. In the event that the party complained against refuses to attend the hearing or effect the settlement of any claim determined by the [commission] department to be correct, the [commission] department shall invoke its powers to take such action as shall be necessary for the indemnification of the claimant.

D. Any person aggrieved by a [commission] department decision rendered subsequent to a claim hearing may appeal to the district court in the judicial district in which the hearing was conducted. The appeal shall be based upon the record established at the claim hearing."

SECTION 10. Section 21-23-7.1 NMSA 1978 (being Laws 1994, Chapter 108, Section 12) is amended to read:

"21-23-7.1. SURETY BOND REQUIRED--ALTERNATIVE SURETY.--

A. A college, university or career school registered or licensed by the [commission] department shall post with the [commission] department and maintain in effect a surety bond. The bond shall be payable to the [commission] department and shall be sufficient in amount to indemnify any student damaged as a result of fraud or misrepresentation by a registered or licensed college, university or career school or as a result of the college, university or career school ceasing operation prior to its students having completed the programs for which they have contracted.

B. The [commission] department is authorized to establish the amount of bond required on an individual basis, taking into consideration factors such as the college's, university's or career school's size, number of students and total income and assets of the college, university or career school in the state. In no case shall the bond be less than five thousand dollars ($5,000) nor shall it exceed twenty percent of a college's, university's or career school's gross annual tuition revenue in New Mexico.

C. Surety bonds may be canceled only following delivery of written notice to the [commission] department no less than ninety days prior to the date of cancellation. In case of cancellation, the college, university or career school shall provide the [commission] department with a like surety or acceptable alternative in order to maintain licensure.

D. As an alternative to a surety bond, a college, university or career school may elect to and the [commission] department may require that a college, university or career school establish and maintain a cash deposit escrow account, irrevocable letter of credit or alternative payable to the [commission] department in an amount set by the [commission] department and subject to [regulations] rules promulgated by the [commission] department. In no case shall the deposit or account required exceed twenty percent of the college's, university's or career school's gross tuition annual revenue in New Mexico."

SECTION 11. Section 21-23-8 NMSA 1978 (being Laws 1975, Chapter 148, Section 8, as amended) is amended to read:

"21-23-8. FUND CREATED.--There is created in the state treasury the "post-secondary educational institution fund". Money appropriated to this fund or accruing to it through gifts, grants or bequests shall not be transferred to another fund or encumbered or disbursed in any manner except for the administration of the Post-Secondary Educational Institution Act or the Out-of-State Proprietary School Act. The fund shall not revert at the end of the fiscal year. Disbursements from the fund shall be made only upon warrant drawn by the secretary of finance and administration pursuant to vouchers signed by the [executive director] secretary of [the commission on] higher education or the secretary's authorized representative."

SECTION 12. Section 21-23-10 NMSA 1978 (being Laws 1971, Chapter 303, Section 9, as amended) is amended to read:

"21-23-10. DISCIPLINARY ACTIONS--CIVIL PENALTIES.--

A. A person shall not:

(1) operate a career school or nonregionally accredited college or university within the state until that school has been licensed by the [commission] department;

(2) operate a regionally accredited college or university within the state until that college or university has registered with the [commission] department;

(3) deny enrollment to or make any distinction or classification of [pupils] students in the program or practices of any post-secondary educational institution under the jurisdiction of the [commission] department on account of race, color, culture, ancestry, national origin, sex, age, religion or disability; or

(4) solicit, directly or through an agent or employee, the enrollment of any person in a post-secondary educational institution within the state by the use of fraud, misrepresentation or collusion.

B. Whoever violates any provision of this section may be assessed a civil penalty not to exceed five hundred dollars ($500) per day per violation. Civil penalties shall be credited to the current school fund as provided in Article 12, Section 4 of the constitution of New Mexico.

C. After an investigation, the [commission] department may take any one or a combination of the following disciplinary actions against a post-secondary [education] educational institution registered or licensed in accordance with the Post-Secondary Educational Institution Act:

(1) revoke a license;

(2) revoke the registration, if the institution has had its regional accreditation revoked by its accrediting agency;

[(2)] (3) assess a civil penalty as provided in Subsection B of this section; or

[(3)] (4) impose probation requirements."

SECTION 13. Section 21-23-10.1 NMSA 1978 (being Laws 1994, Chapter 108, Section 14) is amended to read:

"21-23-10.1. ENFORCEMENT.--The [commission] department or any state or local prosecuting officer may, by request or on [his] the officer's own motion, bring an appropriate action in any court of competent jurisdiction to enforce the provisions of the Post-Secondary Educational Institution Act."

SECTION 14. Section 21-23-12 NMSA 1978 (being Laws 1975, Chapter 148, Section 12, as amended) is amended to read:

"21-23-12. COOPERATION.--The [commission] department shall cooperate with federal and other state agencies in administering the provisions of the Post-Secondary Educational Institution Act. The [state corporation commission] secretary of state shall cooperate with the [commission] department by identifying post-secondary educational institutions that apply for corporate charters. The [state department of] public education department shall cooperate with the [commission] department by providing the technical assistance necessary to develop minimum standards that post-secondary educational institutions shall meet and any other assistance that would be of aid in the administration of the Post-Secondary Educational Institution Act."

SECTION 15. Section 21-23-13 NMSA 1978 (being Laws 1975, Chapter 148, Section 13, as amended) is amended to read:

"21-23-13. PROCEDURE.--The [commission] department shall follow the procedures set out in the Uniform Licensing Act in administering the provisions of the Post-Secondary Educational Institution Act. When the Uniform Licensing Act refers to the process of examination, that process means the process of application for the purposes of the administration of the Post-Secondary Educational Institution Act."

SECTION 16. Section 21-23-14 NMSA 1978 (being Laws 1975, Chapter 148, Section 14, as amended) is amended to read:

"21-23-14. PROHIBITION.--The issuance of a license by the [commission] department does not constitute accreditation by it for any purpose. Any representation to the contrary is a misrepresentation for the purposes of Section 21-23-10 NMSA 1978 and is prohibited."

SECTION 17. Section 21-23-15 NMSA 1978 (being Laws 1979, Chapter 355, Section 1, as amended) is amended to read:

"21-23-15. POST-SECONDARY EDUCATIONAL INSTITUTIONS--TERMINATION.--

A. No post-secondary educational institution shall terminate its operation within the state until:

(1) the institution has made reasonable efforts with another public or private post-secondary educational institution that provides a comparable education to facilitate and provide for the transfer of the students, with a minimum loss of credit;

(2) the post-secondary educational institution has made contractual arrangements for the perpetual care, maintenance and accessibility of all records, transcripts, reports and evaluations of all students receiving credit from the institution during the period of its existence; and

(3) the post-secondary educational institution has met all [regulations] rules of the [commission] department pertaining to the termination of operations by post-secondary educational institutions.

B. Before any post-secondary educational institution terminates its services or sells, transfers or disposes of substantially all of its assets, it shall submit to the [commission] department a summary of all actions taken pursuant to the requirements set forth in Subsection A of this section."

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