13 KAR 2:045. Determination of residency status for admission and tuition assessment purposes

Link to law: http://www.lrc.ky.gov/kar/013/002/045.htm
Published: 2015

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      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).