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
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.
Notes
STATUTORY AUTHORITY: KRS 164.020(8)
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No prior version found.