New York State Education Department
Office of College and University Evaluation Distance Education

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New York State Education Department
Office of College and University Evaluation Distance Education

PHYSICAL PRESENCE POLICY

The New York State Board of Regents, through the State Education Department’s Office of Higher Education, 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 State and are delivered through electronic media to students within the State, the questions 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 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:

• 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.

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.

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. For information on this process, contact the Office of Higher Education at 518/474-2593.

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