13 KAR 2:045. Determination of residency status for admission
and tuition assessment purposes.
RELATES TO: KRS 13B, 164.020, 164.030,
164A.330(6), 38 U.S.C. 3301-3325
STATUTORY AUTHORITY: KRS 164.020(8)
NECESSITY, FUNCTION, AND CONFORMITY: KRS
164.020(8) requires the Council on Postsecondary Education to determine tuition
and approve the minimum qualifications for admission to a state postsecondary
education institution and authorizes the Council to set different tuition
amounts for residents of Kentucky and for nonresidents. This administrative
regulation establishes the procedure and guidelines for determining the
residency status of a student who is seeking admission to, or who is enrolled
at, a state-supported postsecondary education institution.
Section 1. Definitions. (1)
"Academic term" means a division of the school year during which a
course of studies is offered, and includes a semester, quarter, or single
consolidated summer term as defined by the institution.
(2) "Continuous enrollment" means
enrollment in a state-supported postsecondary education institution at the same
degree level for consecutive terms, excluding summer term, since the beginning
of the period for which continuous enrollment is claimed unless a sequence of
continuous enrollment is broken due to extenuating circumstances beyond the
student's control, such as serious personal illness or injury, or illness or
death of a parent.
(3) "Degree level" means
enrollment in a course or program that could result in the award of a:
(a) Certificate, diploma, or other
program award at an institution;
(b) Baccalaureate degree or lower,
including enrollment in a course by a nondegree-seeking post baccalaureate
student;
(c) Graduate degree or graduate certification
other than a first-professional degree in law, medicine, dentistry, or
"Pharm. D"; or
(d) Professional degree in law, medicine,
dentistry, or "Pharm. D".
(4) "Dependent person" means a
person who cannot demonstrate financial independence from parents or persons
other than a spouse and who does not meet the criteria for independence established
in Section 5 of this administrative regulation.
(5) "Determination of residency
status" means the decision of a postsecondary education institution that
results in the classification of a person as a Kentucky resident or as a
nonresident for admission and tuition assessment purposes.
(6) "Domicile" means a person's
true, fixed, and permanent home and is the place where the person intends to
remain indefinitely, and to which the person expects to return if absent
without intending to establish a new domicile elsewhere.
(7) "Full-time employment"
means continuous employment for at least forty-eight (48) weeks at an average
of at least thirty (30) hours per week.
(8) "Independent person" means
a person who demonstrates financial independence from parents or persons other
than a spouse and who meets the criteria for independence established in
Section 5 of this administrative regulation.
(9) "Institution" means an
entity defined by KRS 164.001(12) if the type of institution is not expressly
stated and includes the Kentucky Virtual University, the Council on Postsecondary
Education, and the Kentucky Higher Education Assistance Authority.
(10) "Kentucky resident" means
a person determined by an institution for tuition purposes to be domiciled in,
and a resident of, Kentucky as determined by this administrative regulation.
(11) "Nonresident" means a
person who:
(a) Is domiciled outside Kentucky;
(b) Currently maintains legal residence
outside Kentucky; or
(c) Is not a Kentucky resident as
determined by this administrative regulation.
(12) "Parent" means one (1) of
the following:
(a) A person's father or mother; or
(b) A court-appointed legal guardian if:
1. The guardianship is recognized by an
appropriate court within the United States;
2. There was a relinquishment of the
rights of the parents; and
3. The guardianship was not established
primarily to confer Kentucky residency on the person.
(13) "Preponderance of the
evidence" means the greater weight of evidence or evidence that is more
credible and convincing to the mind.
(14) "Residence" means the
place of abode of a person and the place where the person is physically present
most of the time for a noneducational purpose in accordance with Section 3 of
this administrative regulation.
(15) "Student financial aid"
means all forms of payments to a student if one (1) condition of receiving the
payment is the enrollment of the student at an institution, and includes
student employment by the institution or a graduate assistantship.
(16) "Sustenance" means:
(a) Living expenses, such as room, board,
maintenance, and transportation; and
(b) Educational expenses, such as
tuition, fees, books, and supplies.
Section 2. Scope. (1) State-supported
postsecondary education institutions were established and are maintained by the
Commonwealth of Kentucky primarily for the benefit of qualified residents of
Kentucky. The substantial commitment of public resources to postsecondary
education is predicated on the proposition that the state benefits
significantly from the existence of an educated citizenry. As a matter of
policy, access to postsecondary education shall be provided so far as feasible
at reasonable cost to a qualified individual who is domiciled in Kentucky and
who is a resident of Kentucky.
(2) In accordance with the duties
established in KRS 164.020, the Council on Postsecondary Education may require
a student who is neither domiciled in, nor a resident of, Kentucky to meet
higher admission standards and to pay a higher level of tuition than resident
students.
(3) Unless otherwise indicated, this
administrative regulation shall apply to all student residency determinations,
regardless of circumstances, including residency determinations made by:
(a) The state-supported institutions for
prospective and currently-enrolled students;
(b) The Southern Regional Education Board
for contract spaces;
(c) Reciprocity agreements, if
appropriate;
(d) The Kentucky Virtual University;
(e) Academic common market programs;
(f) The Kentucky Educational Excellence
Scholarship Program; and
(g) Other state student financial aid
programs, as appropriate.
Section 3. Determination of Residency
Status; General Rules. (1) A determination of residency shall include:
(a) An initial determination of residency
status by an institution:
1. During the admission process;
2. Upon enrollment in an institution for
a specific academic term; or
3. For admission into a specific academic
program;
(b) A reconsideration of a determination
of residency status by an institution based upon a changed circumstance; or
(c) A formal hearing conducted by an
institution upon request of a student after other administrative procedures
have been completed.
(2) An initial determination of residency
status shall be based upon:
(a) The facts in existence when the
credentials established by an institution for admission for a specific academic
term have been received and during the period of review by the institution;
(b) Information derived from admissions
materials;
(c) If applicable, other materials
required by an institution and consistent with this administrative regulation;
and
(d) Other information available to the
institution from any source.
(3) An individual seeking a determination
of Kentucky residency status shall demonstrate that status by a preponderance
of the evidence.
(4) A determination of residency status
shall be based upon verifiable circumstances or actions.
(5) Evidence and information cited as the
basis for Kentucky domicile and residency shall accompany the application for a
determination of residency status.
(6) A student classified as a nonresident
shall retain that status until the student is officially reclassified by an
institution.
(7) A student may apply for a review of a
determination of residency status once for each academic term.
(8) If an institution has information
that a student's residency status may be incorrect, the institution shall
review and determine the student's correct residency status.
(9) If the Council on Postsecondary
Education has information that an institution's determination of residency
status for a student may be incorrect, it may require the institution to review
the circumstances and report the results of that review.
(10) An institution shall impose a
penalty or sanction against a student who gives incorrect or misleading
information to an institutional official, including payment of nonresident
tuition for each academic term for which resident tuition was assessed based on
an improper determination of residency status. The penalty or sanction may also
include:
(a) Student discipline by the institution
through a policy written and disseminated to students; or
(b) Criminal prosecution.
Section 4. Presumptions Regarding
Residency Status. (1) In making a determination of residency status, it shall
be presumed that a person is a nonresident if:
(a) A person is, or seeks to be, an
undergraduate student and admissions records show the student to be a graduate
of an out-of-state high school within five (5) years prior to a request for a
determination of residency status;
(b) A person's admissions records
indicate the student's residence to be outside of Kentucky when the student
applied for admission;
(c) A person moves to Kentucky primarily
for the purpose of enrollment in an institution;
(d) A person moves to Kentucky and within
twelve (12) months enrolls at an institution more than half time;
(e) A person has a continuous absence of
one (1) year from Kentucky; or
(f) A person attended an out-of-state
higher education institution during the past academic year and paid in-state
tuition at that institution.
(2) A presumption arising from subsection
(1) of this section shall only be overcome by preponderance of evidence
sufficient to demonstrate that a person is domiciled in and is a resident of Kentucky.
Section 5. Determination of Whether a
Student is Dependent or Independent. (1) In a determination of residency
status, an institution shall first determine whether a student is dependent or
independent. This provision shall be predicated on the assumption that a dependent
person lacks the financial ability to live independently of the person upon
whom the student is dependent, and therefore, lacks the ability to form the
requisite intent to establish domicile. A determination that a student is
independent shall be one (1) step in the overall determination of whether a
student is or is not a resident of Kentucky.
(2) In determining the dependent or
independent status of a person, the following information shall be considered,
as well as other relevant information available when the determination is made:
(a)1. Whether the person has been claimed
as a dependent on the federal or state tax returns of a parent or other person
for the year preceding the date of application for a determination of residency
status; or
2. Whether the person is no longer
claimed by a parent or other person as a dependent or as an exemption for
federal and state tax purposes; and
(b) Whether the person has financial
earnings and resources independent of a person other than an independent spouse
necessary to provide for the person's own sustenance.
(3) An individual who enrolls at an
institution immediately following graduation from high school and remains
enrolled shall be presumed to be a dependent person unless the contrary is
evident from the information submitted.
(4) Domicile may be inferred from the
student's permanent address, parent's mailing address, or location of high
school of graduation.
(5) Marriage to an independent person
domiciled in and who is a resident of Kentucky shall be a factor considered by
an institution in determining whether a student is dependent or independent.
(6) Financial assistance from, or a loan
made by, a parent or family member other than an independent spouse, if used
for sustenance of the student:
(a) Shall not be considered in
establishing a student as independent; and
(b) Shall be a factor in establishing
that a student is dependent.
Section 6. Effect of a Determination of
Dependent Status on a Determination of Residency Status. (1) The effect of a
determination that a person is dependent shall be:
(a) The domicile and residency of a
dependent person shall be the same as either parent. The domicile and residency
of the parent shall be determined in the same manner as the domicile and residency
of an independent person; and
(b) The domicile and residency of a
dependent person whose parents are divorced, separated, or otherwise living
apart shall be Kentucky if either parent is domiciled in and is a resident of
Kentucky, regardless of which parent has legal custody or is entitled to claim
that person as a dependent pursuant to federal or Kentucky income tax
provisions.
(2) If the parent or parents of a
dependent person are Kentucky residents and are domiciled in Kentucky, but
subsequently move from the state:
(a) The dependent person shall be
considered a resident of Kentucky while in continuous enrollment at the degree
level in which currently enrolled; and
(b) The dependent person's residency
status shall be reassessed if continuous enrollment is broken or the current
degree level is completed.
Section 7. Member or Former Member of
Armed Forces of the United States, Spouse and Dependents; Effect on a
Determination of Residency Status. (1) A member, spouse, or dependent of a
member whose domicile and residency was Kentucky when inducted into the Armed
Forces of the United States, and who maintains Kentucky as home of record and
permanent address, shall be entitled to Kentucky residency status:
(a) During the member's time of active
service; or
(b) If the member returns to this state
within six (6) months of the date of the member's discharge from active duty.
(2)(a) A member of the armed services on
active duty for more than thirty (30) days and who has a permanent duty station
in Kentucky shall be classified as a Kentucky resident and shall be entitled to
in-state tuition, as shall the spouse or a dependent child of the member.
(b) A member, spouse, or dependent of a
member shall not lose Kentucky residency status if the member is transferred on
military orders while the member, spouse, or dependent requesting the status is
in continuous enrollment at the degree level in which currently enrolled.
(3) Membership in the National Guard or
civilian employment at a military base alone shall not qualify a person for
Kentucky residency status under the provisions of subsections (1) and (2) of
this section. If a member of the Kentucky National Guard is on active duty status
for a period of not less than thirty (30) days, the member shall be considered
a Kentucky resident, as shall the spouse or a dependent child of the member.
(4) A person eligible for benefits under
the federal Post-9/11 Veterans Educational Assistance Act of 2008, 38 U.S.C.
3301-3325, or any other educational benefits provided under Title 38 of the
United States Code shall be entitled to Kentucky resident status for purposes
of tuition charged at state-supported institutions.
(5) A person's residency status
established pursuant to this section shall be reassessed if the qualifying
condition is terminated.
Section 8. Status of Nonresident Aliens;
Visas and Immigration. (1)(a) A person holding a permanent residency visa or
classified as a political refugee shall establish domicile and residency in the
same manner as another person.
(b) Time spent in Kentucky and progress
made in fulfilling the conditions of domicile and residency prior to obtaining
permanent residency status shall be considered in establishing Kentucky
domicile and residency.
(2) A person holding a nonimmigrant visa
with designation A, E, G, H-1, H-4 if accompanying a person with an H-1 visa,
I, K, L, N, R, shall establish domicile and residency the same as another person.
(3)(a) An independent person holding a
nonimmigrant visa with designation B, C, D, F, H-2, H-3, H-4 if accompanying a
person with an H-2 or H-3 visa, J, M, O, P, Q, S, TD, or TN shall not be classified
as a Kentucky resident because that person does not have the capacity to remain
in Kentucky indefinitely and therefore cannot form the requisite intent
necessary to establish domicile as defined in Section 1(6) of this
administrative regulation.
(b) A dependent person holding a visa as
described in paragraph (a) of this subsection, but who is a dependent of a
parent holding a visa as described in subsection (2) of this section, shall be
considered as holding the visa of the parent.
(c) A dependent person holding a visa
described in subsection (2) of this section or paragraph (a) of this
subsection, if a parent is a citizen of the United States and is a resident of
and domiciled in Kentucky, shall be a resident of Kentucky for the purposes of
this administrative regulation.
(4) A person shall be a Kentucky resident
for the purpose of this administrative regulation if the person graduated from
a Kentucky high school and:
(a) Is an undocumented alien;
(b) Holds a visa listed in subsections
(2) or (3)(a) of this section; or
(c) Is a dependent of a person who holds
a visa listed in subsections (2) or (3)(a) of this section.
(5)(a) Except as provided in paragraph
(b) of this subsection, a person who has petitioned the federal government to
reclassify visa status shall continue to be ineligible until the petition has
been granted by the federal government.
(b) A person who has petitioned the
federal government to reclassify his or her visa status based on marriage to a
Kentucky resident and who can demonstrate that the petition has been filed and
acknowledged by the federal government, may establish Kentucky domicile and
residency at that time.
Section 9. Beneficiaries of a Kentucky
Educational Savings Plan Trust. A beneficiary of a Kentucky Educational Savings
Plan Trust shall be granted residency status if the beneficiary meets the
requirements of KRS 164A.330(6).
Section 10. Criteria Used in a
Determination of Residency Status. (1)(a) A determination of Kentucky domicile
and residency shall be based upon verifiable circumstances or actions.
(b) A single fact shall not be paramount,
and each situation shall be evaluated to identify those facts essential to the
determination of domicile and residency.
(c) A person shall not be determined to
be a Kentucky resident by the performance of an act that is incidental to
fulfilling an educational purpose or by an act performed as a matter of convenience.
(d) Mere physical presence in Kentucky,
including living with a relative or friend, shall not be sufficient evidence of
domicile and residency.
(e) A student or prospective student
shall respond to all requests for information regarding domicile or residency
requested by an institution.
(2) The following facts, although not
conclusive, shall have probative value in their entirety and shall be
individually weighted, appropriate to the facts and circumstances in each
determination of residency:
(a) Acceptance of an offer of full-time
employment or transfer to an employer in Kentucky or contiguous area while
maintaining residence and domicile in Kentucky;
(b) Continuous physical presence in
Kentucky while in a nonstudent status for the twelve (12) months immediately
preceding the start of the academic term for which a classification of Kentucky
residency is sought;
(c)1. Filing a Kentucky resident income
tax return for the calendar year preceding the date of application for a change
in residency status; or
2. Payment of Kentucky withholding taxes
while employed during the calendar year for which a change in classification is
sought;
(d) Full-time employment of at least one
(1) year while living in Kentucky;
(e) Attendance as a full-time,
nonresident student at an out-of-state institution based on a determination by
that school that the person is a resident of Kentucky;
(f) Abandonment of a former domicile or
residence and establishing domicile and residency in Kentucky with application
to or attendance at an institution following and incidental to the change in
domicile and residency;
(g) Obtaining licensing or certification
for a professional and occupational purpose in Kentucky;
(h) Payment of real property taxes in
Kentucky;
(i) Ownership of real property in
Kentucky, if the property was used by the student as a residence preceding the
date of application for a determination of residency status;
(j) Marriage of an independent student to
a person who was domiciled in and a resident of Kentucky prior to the marriage;
and
(k) The extent to which a student is
dependent on student financial aid in order to provide basic sustenance.
(3) Except as provided in subsection (4)
of this section, the following facts, because of the ease and convenience in
completing them, shall have limited probative value in a determination that a
person is domiciled in and is a resident of Kentucky:
(a) Kentucky automobile registration;
(b) Kentucky driver's license;
(c) Registration as a Kentucky voter;
(d) Long-term lease of at least twelve
(12) consecutive months of noncollegiate housing; and
(e) Continued presence in Kentucky during
academic breaks.
(4) The absence of a fact contained in
subsection (3) of this section shall have significant probative value in
determining that a student is not domiciled in or is not a resident of
Kentucky.
Section 11. Effect of a Change in
Circumstances on Residency Status. (1) If a person becomes independent or if
the residency status of a parent or parents of a dependent person changes, an
institution shall reassess residency either upon a request by the student or a
review initiated by the institution.
(2) Upon transfer to a Kentucky institution,
a student's residency status shall be assessed by the receiving institution.
(3) A reconsideration of a determination
of residency status for a dependent person shall be subject to the provisions
for continuous enrollment, if applicable.
Section 12. Student Responsibilities. (1)
A student shall report under the proper residency classification, which
includes the following actions:
(a) Raising a question concerning
residency classification;
(b) Making application for change of
residency classification with the designated office or person at the
institution; and
(c) Notifying the designated office or
person at the institution immediately upon a change in residency.
(2) If a student fails to notify an
institutional official of a change in residency, an institutional official may
investigate and evaluate the student's residency status.
(3)(a) If a student fails to provide, by
the date specified by the institution, information required by an institution
in a determination of residency status, the student shall be notified by the
institution that the review has been canceled and that a determination has been
made.
(b) Notification shall be made by
registered mail, return receipt requested.
(c) Notification shall be made within ten
(10) calendar days after the deadline for receipt of materials has passed.
(4)(a) The formal hearing conducted by an
institution and the final recommended order shall be a final administrative
action with no appeal to the Council on Postsecondary Education.
(b) A formal administrative hearing
conducted by the Council on Postsecondary Education for residency
determinations related to eligibility for the Academic Common Market and
Regional Contract Programs shall be conducted pursuant to the provisions of KRS
Chapter 13B and 13 KAR 2:070. The recommended order issued by the President of
the Council shall be a final administrative action.
(5) A student shall not be entitled to
appeal a determination of residency status if the determination made by an
institution is because a student has failed to meet published deadlines for the
submission of information as set forth in subsection (3) of this section. A
student may request a review of a determination of residency status in a subsequent
academic term.
Section 13. Institutional
Responsibilities. Each institution shall:
(1) Provide for an administrative appeals
process that includes a residency appeals officer to consider student appeals
of an initial residency determination and which shall include a provision of
fourteen (14) days for the student to appeal the residency appeals officer’s determination;
(2) Establish a residency review
committee to consider appeals of residency determinations by the residency
appeals officer. The residency review committee shall make a determination of
student residency status and notify the student in writing within forty-five
(45) days after receipt of the student appeal;
(3) Establish a formal hearing process as
described in Section 14 of this administrative regulation; and
(4) Establish written policies and
procedures for administering the responsibilities established in subsections
(1), (2), and (3) of this section and that are:
(a) Approved by the institution’s
governing board;
(b) Made available to all students; and
(c) Filed with the council.
Section 14. Formal Institutional Hearing.
(1) A student who appeals a determination of residency by a residency review
committee shall be granted a formal hearing by an institution if the request is
made by a student in writing within fourteen (14) calendar days after
notification of a determination by a residency review committee.
(2) If a request for a formal hearing is
received, an institution shall appoint a hearing officer to conduct a formal
hearing. The hearing officer shall:
(a) Be a person not involved in
determinations of residency at an institution except for formal hearings; and
(b) Not be an employee in the same
organizational unit as the residency appeals officer.
(3) An institution shall have written
procedures for the conduct of a formal hearing that have been adopted by the
board of trustees or regents, as appropriate, and that provide for:
(a) A hearing officer to make a
recommendation on a residency appeal;
(b) Guarantees of due process to a
student that include:
1. The right of a student to be
represented by legal counsel; and
2. The right of a student to present
information and to present testimony and information in support of a claim of
Kentucky residency; and
(c) A recommendation to be issued by the
hearing officer.
(4) An institution’s formal hearing
procedures shall be filed with the Council on Postsecondary Education and shall
be available to a student requesting a formal hearing.
Section 15. Cost of Formal Hearings. (1)
An institution shall pay the cost for all residency determinations including
the cost of a formal hearing.
(2) A student shall pay for the cost of
all legal representation in support of the student’s claim of residency. (17
Ky.R. 2557; eff. 4-5-1991; Am. 22 Ky.R. 1656; 1988; eff. 5-16-1996; 23 Ky.R.
3380; 3797; 4099; eff. 6-16-1997; 24 Ky.R. 2136; 2705; 25 Ky.R. 51; eff.
7-13-1998; 25 Ky.R. 2177; 2577; 2827; eff. 6-7-1999; 749; 1238; eff.
11-12-2002; 36 Ky.R. 1083; 1951; 2033-M; eff. 4-2-2010; TAm eff. 11-20-2014; 41
Ky.R. 2108; 42 Ky.R. 9; eff. 7-13-2015; TAm 7-13-2015).
