Guidance for Independent Institutions of Higher Education on Mergers, Consolidations, and Membership
Introduction
Many Institutions of Higher Education (IHEs) across New York State are experiencing enrollment, financial and operational challenges, and are increasingly exploring partnership opportunities with other institutions to offer more attractive programs, share services, achieve efficiencies, and possibly have a presence in more than one location.
As part of the statewide planning process for Higher Education, the New York State Education Department (NYSED) and Board of Regents anticipate further elucidation of these interests and the issuance of additional guidance or regulatory changes regarding the issues of relationships with other colleges and universities within the State and other means by which operations, structures, and programs may be transformed in response to the evolving higher education landscape and student demographics. We anticipate that this might include reforms in the areas of multi-institution programs and the processes for establishing branch campuses and extension centers.
Recent college closures, however, signal an immediate need for clear guidance and initial proposed regulatory reform to inform the field of the procedures and possibilities for merger, consolidation, or membership between two not-for-profit institutions. Below are Questions and Answers in this regard which we trust will be helpful and we look forward to continued discussions.
Q&A
Q: Can a not-for-profit IHE’s degree conferring authority be sold or transferred to another?
A: Generally, no. Historically, this would involve (a) closure and dissolution of one institution, (b) transfer of substantially all assets to another institution (subject to Attorney General (OAG) and Supreme Court approval), and (c) program registration applications to register programs to the surviving institution.
Q: What about proprietary (for-profit) colleges?
A: Regents Rule 3.58 sets forth the procedures and considerations for transfer of degree conferring authority by proprietary colleges. This guidance will therefore concern not-for-profit institutions.
Q: Closure and dissolution are unattractive options. Are there other means by which two institutions authorized to confer degrees in New York may formally partner with each other?
A: Yes, merger, consolidation or membership with another institution of higher education in New York is possible. Where institutions authorized to offer degree programs in New York State seek to merge or consolidate with each other, a written agreement and plan may be entered into setting forth such intent and an application may be submitted to the Board of Regents pursuant to Education Law §223. Alternatively, if sole-membership with another institution is desired, an application pursuant to Education Law §219 may be made.
Q: We are interested in a merger or consolidation, but guidance from the USDE (available here) requires that the institution that has been “acquired” continue its existence as an independent institution and must continue to operate under its existing OPE ID until federal approval of the merger into one institution is obtained. How does this work in New York?
A: Assuming all other requirements are met, the Board of Regents may approve the merger or consolidation contingent upon (and effective upon the date of) federal approval and, in the interim, amend the charters to allow a temporary sole membership arrangement between the two institutions.
Q: In the scenario noted above regarding a merger awaiting federal approval, what about the requirement in Regents Rule 3.59(b)(2) that there be one New York State-based governing board that has final responsibility for and control over the New York institution, independent from any parent?
A: With the ultimate merger or consolidation of the two entities already approved by the Regents and subject only to USDE approval, control by one member over the other does not offend the requirements of the cited section.
Q: Are there other regulatory approvals required for a merger or consolidation of two IHEs?
A: Approval by the United States Department of Education and the institutions’ accrediting agencies may be required.
Q: What if we want to maintain separate corporate entities but allow for sole membership by another institution.
A: Again, this is permissible, but there is a limit on the control and powers that may be reserved to the sole member and additional approvals may be needed. In light of the independent board requirement in 3.59(b)(2), only a minority of the trustees may be appointed or removed by the sole member and ultimate control of the academic programs and budget must remain with the original entity. Please also note that creation of a sole member and some transfer of control may be a transaction requiring review and approval of the NYS Office of the Attorney General (OAG) or Supreme Court under Education Law §216-a and NPCL §§510-511.
Q: May a NY IHE merge/consolidate with a NY Not-For Profit Corporation (NPC)?
A: Yes, but the education corporation (IHE) would generally have to be the surviving corporation. See also 3.59(a)(1) (“In rare circumstances, Regents authorization to operate as an independent/not-for-profit institution may be provided through the Consent of the Commissioner to an amendment to the corporate purposes of an existing corporation, which holds a certificate of incorporation or has been formed under the not-for-profit corporation laws of New York State.”).
Q: May a NY IHE allow a NY NPC to be its sole-member.
A: Yes, but subject to the same limitations expressed above regarding only a minority of the trustees being appointed or removed by the sole member; ultimate control of the academic programs and budget remaining with the education corporation, and the possible need for review and approval by OAG.
Q: What about partnering with an IHE from another state?
A: Under proposed amendment to Rule 3.59 discussed at the January 2024 Regents meeting, if adopted, a NY IHE may apply to merge or consolidate with a highly qualified independent and not-for-profit institution of higher education from another state. This proposed amendment would not allow for a merger or consolidation with an out-of-state public institution.
Q: What about partnering with a foreign (out of country) IHE?
A: NYSED is considering issues attendant to allowing such formal partnerships. Additional guidance may be forthcoming.
Q: Who can we talk with about these issues?
A: While NYSED cannot offer legal advice or strategic planning, NYSED’s Office of Counsel (legal@nysed.gov) and Office of College and University Evaluation (ocueinfo@nysed.gov) are available to provide technical assistance. Inquiries related to institutions offering programs related to professional licensure should be directed to NYSED’s Professional Education Program Review (opprogs@nysed.gov).
Updated January 4, 2024