(a) Notwithstanding any provisions of this Subpart to the contrary, the commissioner may find a school district eligible for funds appropriated by the Legislature for the operation of the following program variations:

1. (1) Programs which provide activities for prekindergarten children, in conjunction with a grant to a Community Schools Program.
2. (2) A home-based program which serves both children and parents in the home through regular visits by a trained staff member, provided that such program was funded during the 1988-89 school year. The requirements set forth in sections 151-2.4(b)(7) and (11), 151-2.7, 151-2.8 and 151-2.9 of this Subpart, shall not apply to such programs.

3. (3) Joint Federal Chapter 1 and State experimental prekindergarten programs in schools districts eligible for a concentration grant in excess of $200,000 in the base year pursuant to section 1006 of chapter 1 of title 1 of the Elementary and Secondary Education Act, as amended, 20 U.S.C. 2712 (title 20, Education, sections 1241 to 3400, West Publishing Co., P.O. Box 64526, St. Paul, MN 55164; available at Office of School Improvement Grants Management and Compliance, Education Building Annex, Room 469, State Education Department, Albany, NY 12234). To be approved for funding, such a district shall submit an application which demonstrates that:

   1. (i) the program will serve educationally deprived children, and no other criteria except age and educational need will be used to select children for participation in the joint program;
   2. (ii) all program requirements of this Part, except those relating to the selection of prekindergarten children to participate in the joint program on the basis of economic disadvantage, will be met;
   3. (iii) priority in the selection of the schools within the district for the establishment of new prekindergarten programs or the expansion of prekindergarten programs funded in the base year will be given to schools with the highest concentration of children from low-income families, as determined from their ranking for purposes of chapter 1 pursuant to 34 CFR 200.30 (Code of Federal Regulations, 1989 Edition, Superintendent of Public Documents, U.S. Government Printing Office, Washington, DC 20402: 1984; available at Office of School Improvement Grants Management and Compliance, Education Building Annex, Room 469, State Education Department, Albany, NY 12234);
   4. (iv) prekindergarten children in the area served by schools selected as the site of a prekindergarten program approved for funding pursuant to this paragraph shall be selected for participation in order of greatest educational need; and
   5. (v) an exclusion has been granted for the joint program from the comparability and supplement, not supplant requirements under chapter 1 pursuant to 34 CFR 200.45 (Code of Federal Regulations, 1989 Edition, Superintendent of Public Documents, U.S. Government Printing Office, Washington, DC 20402: 1984; available at Office of School Improvement Grants Management and Compliance, Education Building Annex, Room 469, State Education Department, Albany, NY 12234).

(b) Notwithstanding any other provision of this Subpart, upon application by a school district, the commissioner may grant a variance from the requirements of this Subpart pertaining to the age of children served, limitations on program hours, the number of days per week that services are provided, staffing patterns, or the eligibility of home-based programs upon findings by the commissioner that:

1. (1) the granting of the variance is educationally justified; and
2. (2) the granting of the variance is consistent with the purposes of this Subpart.