(a) Upon written application and approval of the commissioner, homes or facilities providing educational programs and services to populations that are small in number and either transient or confined may provide such educational programs and services pursuant to this section in lieu of the requirements of section 116.3 of this Part.

1. (1) Application. Such application shall provide the justification for the need to provide programs and services pursuant to this section in lieu of section 116.3 of this Part. Such application shall include:

   1. (i) specific reasons for choosing to provide services under this section, which shall include a description of the population served; and
   2. (ii) specific details of the alternative educational program and services proposed, which shall include the subject areas as required by section 3204 of the Education Law and Part 100 of this Title.

2. (2) Standards. Such programs and services shall meet the following requirements in addition to those set forth in section 116.2 of this Part.

   1. (i) The instructional time provided each school day shall be approved by the commissioner pursuant to subdivision (a) of this section, except that the school day shall total not less than three hours of instruction. Such instructional time shall exclude time provided for lunch, transportation and, for pupils with handicapping conditions, related services as defined in section 200.1(dd) of this Title.
   2. (ii) Instructional personnel shall be certified as teachers and provide instruction pursuant to Part 80 of this Title. Approval may be granted for a variance from the requirements of this subdivision upon a finding, based on an application submitted pursuant to subdivision (a) of this section, that qualified personnel will be providing instruction and that it is not feasible to employ appropriately certified teachers.