In addition to the terms defined in § 222.2, the following definition applies to this part:

Free public education. (1) The term means education that is provided—

1. (i) At public expense;

2. (ii)

   1. (A) As the complete elementary or secondary educational program as determined under State law through grade 12; and
   2. (B) Preschool education, whether or not included as elementary education by State law;
3. (iii) In a school of the local educational agency (LEA) or under a tuition arrangement with another LEA or other educational entity; and
4. (iv) Under public supervision and direction, except with respect to children with disabilities.

5. (2) For the purpose of paragraph (1)(i) of this definition, education is provided at public expense if—

   1. (i) There is no tuition charge to the child or the child's parents; and
   2. (ii) Federal funds, other than Impact Aid funds and charter school startup funds, do not provide a substantial portion of the educational program, in relation to other LEAs in the State, as determined by the Secretary.

6. (3) For the purpose of paragraph (1)(ii) of this definition, the complete elementary or secondary educational program is the program recognized by the State as meeting all requirements for elementary or secondary education for the children claimed and, except for preschool education, does not include a program that provides only—

   1. (i) Supplementary services or instruction; or
   2. (ii) A portion of the required educational program.

7. (4) For the purpose of paragraph (1)(iii) of this definition, a tuition arrangement must—

   1. (i) Satisfy all applicable legal requirements in the State; and
   2. (ii) Genuinely reflect the applicant LEA's responsibility to provide a free public education to the children claimed under section 8003.

8. (5) For the purpose of paragraph (1)(iv) of this definition, education provided under public supervision and direction means education that is provided—

   1. (i) In a school of the applicant LEA or another LEA; or

   2. (ii) By another educational entity, over which the applicant LEA, or other public agency, exercises authority with respect to the significant aspects of the educational program for the children claimed. The Secretary considers significant aspects of the educational program to include administrative decisions relating to teachers, instruction, and curriculum.

      (Authority: 20 U.S.C. 7703, 7709, 7713(6))

[60 FR 50778, Sept. 29, 1995, as amended at 81 FR 64741, Sept. 20, 2016]