Information for Out-of-State Institutions: What Constitutes "Physical Presence" in New York State?

The New York State Board of Regents, through the State Education Department, is responsible for regulating and assuring the quality of credit-bearing higher education offered within the State. When higher education offerings originate outside New York and are delivered through electronic media to students within the 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 electronically delivered instruction originating outside the State. The State Education Department considers an institution to have a physical presence in New York 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 academic program (e.g., advising, mentoring, study groups, examination administration).
  • 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.
  • Places students in clinical internships related to certain licensed professions (e.g., nursing, mental health counseling, respiratory therapy, etc.), the practices of which are typically restricted to licensed persons or students enrolled in educational programs approved or registered by the Department.

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.
  • Recruitment of students, e.g., at college fairs, job fairs, or trade shows.
  • Conducting alumni activities within the State, such as alumni clubs.

Any institution outside New York State that offers or intends to offer credit-bearing instruction within the State that meets the definition of physical presence outlined above must apply to the Board of Regents through the State Education Department for permission to offer its programs.