MEMORANDUM — DECISION AND ORDER
I. Introduction
Plaintiff Nancy E. Connors (“Plaintiff’ or “Mrs. Connors”), pro se, brings this action on behalf of her learning disabled child, D.C., under the Individuals with Disabilities Education Act (“IDEA” or “the Act”), 20 U.S.C. § 1400, et seq. (1988) (current version at 20 U.S.C.A. § 1400, et seq. (West Supp. 1998)), seeking reimbursement for costs incurred pursuing administrative relief and prospective relief relative to D.C.’s continued placement in a non-approved private school. Defendants Richard Mills, Commissioner of Education for the State of New York, and the New York State Board of Regents, move for summary judgment on two grounds. First, Defendants contend that this Court does not have subject matter jurisdiction over the instant action because Plaintiff has failed to exhaust administrative remedies; and, second, that Plaintiff has not stated a valid claim because prospective payment for non-approved private schools is not available under the IDEA. Because the parties concede there are no material issues of fact left to be resolved, this case is ripe for summary adjudication.
II. Statutory Background 1
The IDEA is “an ambitious federal effort” to “assist state[s] ... in educating [disabled] children.”
Board of Educ. of Hendrick Hudson Cent Sch. Dist. v. Rowley,
Congress included a panoply of procedural safeguards to give parents an opportunity to have “meaningful” input in decisions about their child’s education.
Honig v. Doe,
As an alternative to the impartial due process hearing, a parent may file a complaint with the SEA claiming that the school has violated or is violating the IDEA. 34 C.F.R. §§ 300.600-300.662. The SEA then has sixty (60) days to investigate and resolve the matter. 34 C.F.R. § 300.661. If a parent invokes both the due process and the complaint resolution procedures, the SEA will stay its investigation of the complaint pending resolution of the same matters in the due process hearing.
While the IDEA compels states to promulgate a plan that meets certain requirements including guaranteeing the right to a “free appropriate education,” Congress left it to the states to implement the specifics of their respective educational programs. In New York, Article 89 of the New York Education Law, § 4401, et seq. (McKinney’s 1995 and Supp.1998), was adopted, at least in part, to comply with the IDEA. Under Article 89, it is the charge of a Committee on Special Education (“CSE”), whose members are appointed by the board of education or trustees of each school district, to develop a student’s IEP. N.Y.Educ.Law § 4402(l)(b)(l) (McKinney Supp.1998). As noted, New York provides two levels of review for parents objecting to their child’s IEP: the parent may request a due process hearing before an impartial hearing officer (“IHO”) and, if still aggrieved, the parent may seek review of the IHO’s decision before a SRO. N.Y.Educ.Law §§ 4404(1), (2) (McKinney 1995 and Supp. 1998). After the SRO renders a decision, either party may file suit in state or federal court. N.Y.Educ.Law § 4404(3) (McKinney 1995).
Though the IDEA favors placing students in the least restrictive environment which often is the student’s public school, see 20 U .S.C.A. § 1412(5) (West Supp.1998), if that public school placement is inappropriate, a student may be placed in a more restrictive setting. The SEA is charged with the responsibility of ensuring that children with disabilities are placed in “educational pro *799 grams ... [that] meet the education standards of the state education agency.” 20 U.S.C.A. § 1412(6) (West Supp.1998). The New York State Education Department (“NYSED”) has provided a list of schools that have met the criteria set forth by state and federal law. See N.Y.Comp.Codes R. & Regs, title 8, § 200.1(d) (1998) (“Approved private school means a private school which conforms with the requirements of Federal and State laws and regulations governing the education of students with disabilities, and which has been approved by the commissioner for the purpose of contracting with public schools for the instruction of students with disabilities.”). If the CSE is unable to find an appropriate placement in the public school, it may place the child in an approved school from NYSED’s list. The primary issue presented here is whether the school district, either through the CSE, LEA, or SEA, may place a child in a non-approved private school.
III. Facts
D.C., a child with multiple disabilities, was a student in the New Paltz Central School District (“New Paltz”) which is not a party to this action. In September, 1994, after Plaintiff objected to D.C.’s 1994-1995 IEP, she enrolled D.C. at the Brendon Montessori School, a “non-approved” private school. After Plaintiff filed for a due process hearing on February 10, 1995, she hired Marilyn Arons to help her prepare for the hearing and to represent her at a May 18, 1995 settlement conference. The May 18, 1995 settlement provided, inter alia, that (1) New Paltz would reimburse Mrs. Connors for placement at the Montessori School for the 1994-1995 school year; (2) New Paltz would provide transportation to the Montessori School until the end of the 1994AL995 term; and (3) D.C. would be given an independent evaluation for speech.
Significantly, New Paltz and Mrs. Connors agreed and, from the record, continue to agree that New Paltz could not provide an appropriate education for D.C. and, moreover, that the Montessori School could so provide.
Unhappy with her son’s 1995-1996 IEP and the manner in which New Paltz acted following the May 18,1995 settlement, Plaintiff filed a complaint with NYSED in September, 1995, claiming that New Paltz was violating the IDEA. NYSED responded to the complaint by indicating that it would investigate and resolve the matter within sixty (60) days as required by statute. In October, 1995, at the beginning stages of the investigation, NYSED learned that Plaintiff had requested a due process hearing regarding the same matters presented in the complaint. Accordingly, NYSED suspended its investigation pending resolution of the administrative proceedings. The due process hearing was held on March 13, 1996 and Mrs. Connors and New Paltz again entered a settlement in which the parties agreed in part that (1) New Paltz would reimburse Mrs. Connors for costs associated with D.C.’s placement at Montessori during the period including July, 1995 to June, 1996, (2) a bank of specified compensatory services would be created as well as the conditions for implementing same, and (3) the CSE would generate an IEP for the 1996-1997 school year and, if the parties could not agree thereto, then a due process hearing would be held.
New Paltz and Mrs. Connors could not agree as to whether Montessori could or should be identified as the official pendency placement on D.C.’s IEP. New Paltz contended that federal law prohibited a public school district from placing D.C. in a non-approved program. Consequently, on June 11, 1996, the parties agreed to “continue to have D.C.’s education provided at the ... Montessori School ... and the district shall pay for the tuition costs of such education ... until the Impartial Hearing Officer renders his decision.... ” Since June 11, 1996, New Paltz has complied with the terms of the agreement and has paid prospectively for D.C.’s placement at Montessori. Arons represented Plaintiff during the relevant time period and for all settlement agreements relative to the due process hearings.
At the heart of the present controversy is Plaintiffs challenge to New York State procedure which compels Plaintiff to front the costs of unilateral placement in a non-ap *800 proved private school and thereafter to request due process review in order to obtain reimbursement for same. Plaintiff asseverates that because she and New Paltz agree that New Paltz cannot provide D.C. an appropriate education and that Montessori can, she should not be required to incur the costs of a due process hearing in order to secure reimbursement. Rather, Plaintiff argues that New Paltz should provide payment without requiring a due process hearing. This raises two concerns beyond the jurisdictional matters Defendant identifies: first, whether prospective payment for placement in a non-approved school is permissible under the IDEA; and, second, whether fees for the services of a non-attorney advocate are covered by the IDEA. Before reaching these issues, however, Defendants’ contention that this Court lacks subject matter jurisdiction must be addressed.
IV. Discussion
A. Exhaustion
Defendants argue that this Court lacks subject matter jurisdiction because Mrs. Connors failed to exhaust all available administrative remedies. Specifically, Defendants assert that they did not have a chance to address Plaintiffs arguments in an administrative setting because Plaintiff did not raise the issue of prospective payment at any of the impartial due process hearings.
Congress included an exhaustion requirement in the IDEA by specifying the following:
Nothing in this chapter shall be construed to restrict or limit the rights ... of children and youth with disabilities, except that before the filing of a civil action under such laws seeking relief that is also available under this subchapter, the procedures under subsections (b)(2) and (c) of this section shall be exhausted to the same extent as would be required had the action been brought under this subchapter.
20 U.S.C.A. § 1415(f) (West Supp.1998). Defendants are correct that under the usual circumstances a court cannot entertain a suit when a plaintiff fails to avail herself of all state administrative remedies.
See Stellato v. Board of Educ. of Ellenville Cent. Sch. Dist.
Following Honig and McKart, the Second Circuit
has adopted a ‘flexible approach’ to the exhaustion requirement, excusing a parent’s failure to exhaust administrative remedies if resort to the administrative process is futile, the agency has adopted a policy or practice of general applicability that is contrary to law, or it is improbable that adequate relief is available in the administrative forum.
Mason v. Schenectady City Sch. Dist.,
In the case sub judice, compelling exhaustion would not serve either of the two exhaustion policies because only legal questions are presented here and neither the hearing officer nor a SRO could grant adequate relief. Mrs. Connors objects to a poli *801 cy which prohibits prospective payment for non-approved private schools and she also seeks reimbursement for costs associated with hiring a non-attorney representative. Phrased as interrogatories, the issues are the following: First, can a local or state education agency place , a disabled child in a non-approved private school without violating the IDEA? Second, can a court award fees under the IDEA to a non-attorney advocate? Answering these questions will require an analysis of the IDEA and of federal case law, the former requiring an analysis of Supreme Court precedent as well. Neither a detailed examination of a factual record nor an independent factual .investigation relative to the appropriateness of D.C.’s educational program is necessary. The ultimate issues, therefore, are purely legal in nature and do not require the expertise or experience of an administrative agency. 3
Defendants assert that prospective placement in a non-approved school is not allowed under the IDEA or Supreme Court precedent. Clearly then, Mrs. Connors could not get adequate relief if forced to go through the State administrative process. Furthermore, Defendants’ steadfast refusal to provide for prospective placement jeopardizes Plaintiffs current arrangement with New Paltz wherein New Paltz has paid prospectively for D.C.’s placement at Montessori since June 11, 1996 pursuant to their settlement agreement.
Defendants argue, in the alternative, that Plaintiff has failed to exhaust available administrative procedures because
New Paltz
failed to avail itself of either the Emergency Interim Placement (“EIP”) program
4
or the procedures set forth in New York’s administrative code which allow reimbursement to a public school for placement in an approved in-state or out-of-state private school if the public school provides documentation of its efforts to place the student in a public facility. N.Y.Comp.Codes R. & Regs, title 8, § 200.6(i) (1998). This argument must be rejected for two primary reasons. First, New Paltz is not a party to this action. Defendants have presented no authority for the proposition that a parent must wait for a school district to avail itself of all possible administrative remedies when the school district has chosen not to do so before that parent is able to bring suit in state or federal court.
See Antkowiak by Antkowiak v. Ambach,
Defendant Mills also argues that he would not be a proper party to a lawsuit even if Plaintiff did exhaust her administrative remedies. Defendants cites
M.M. v. Board of Educ. of Waterville Cent. Sch. Dist.,
*802 Beyond the speculative and counterfactual nature of Defendant’s argument, it should be noted that here the New Paltz Board of Education was not willing to grant Plaintiffs request for relief because it felt that to do so would not comport with state and federal law. PL’s Mem. at ¶ 11. It is clear that Commissioner Mills also interprets federal law to prohibit Plaintiffs requested relief and that he would enforce that policy. As a result, there is a nexus between the law or policy as interpreted and the denial of Plaintiffs relief. Further, unlike in M.M., the appropriateness of the private placement and the inappropriateness of the public placement are not at issue here. Therefore, Plaintiff may properly maintain this action against Defendant Mills. 5
B. Prospective Relief
According to Defendants, Plaintiff cannot state a valid claim notwithstanding a finding of jurisdiction because the IDEA and Supreme Court precedent demonstrates that prospective relief for placement in non-approved private schools is unavailable under the IDEA. While Defendants’ citations to
Florence County Sch. Dist. Four v. Carter,
Neither
Carter
nor
Burlington
address the issue presented here. In
Carter,
the Supreme Court held that a court may order reimbursement for parents who unilaterally place their child in a non-approved private school if it is determined that “the public placement violated IDEA and that the private school placement was proper under the Act.”
Id.
at 15,
Defendants contend that compelling prospective or immediate payment in all situations where the Burlington prerequisites are met would require LEAs to violate §§ 1401(a)(18)(B) (current version at 20 U.S.C.A. 1412(a)(10)(B)(ii) (West Supp.1998)) and 1413(4)(B)(ii) of the IDEA. Section 1401(a)(18)(B) provides in pertinent part that a “free appropriate education” is education and related services that “meet the standards of the State educational agency.” Further, pursuant to § 1413(4)(B)(ii), a SEA must ensure that private schools in which the SEA or LEA place a child “meet standards that apply to State and local educational agencies.” See also N.Y.Educ.Law § 4402(2)(b)(2) (McKinney 1995) Stated otherwise, in order for a SEA or a LEA to comply with the Act, the private school in which either agency places a child must be approved.
*803 The statutory text, however, is not as transparent as Defendants contend. Whether the educational services offered a child “meet the standards of the State educational agency” is only one aspect of a “free appropriate public education.” Section 1401(a)(18) also provides that a “free appropriate public education” includes “an appropriate ... education”, § 1401(a)(18)(C), that is “in conformity with the [IEP].” § 1401(a)(18)(D). From the text, it is apparent that Congress intended “free appropriate public education” to include both procedural and substantive aspects. Defendants interpret the Act in such a way as to assign greater importance to the procedural aspects of “free appropriate public education” than to the substantive aspects.
Because Defendants are responsible for administering the implementation of the IDEA in New York, their interpretation thereof is entitled to deference.
N.L.R.B. v. Bell Aerospace Co.,
“ ‘Statutes ... are not inert exercises in literary composition!, but] instruments of government,’ ... [so] a statute’s meaning is inextricably intertwined with its purpose, and [a court must] look to statutory text to determine purpose.... ”
Rowland v. California Men’s Colony,
In reaching its conclusion, the
Carter
Court noted that the “IDEA was intended to ensure that children with disabilities receive an education that is both appropriate and free”
Underlying the Supreme Court’s decision in these cases was a concern that the child is given meaningful access to needed educational services such that the intentions of the Act
*804
are respected. Starting with
Rowley,
the Court rejected an interpretation of the Act and of Congressional intent that would require schools to maximize the potential of disabled children “commensurate with the opportunity provided non[disabled] children.”
In
Burlington,
the Supreme Court addressed this issue and held that a parent was entitled to reimbursement for unilaterally placing a child in an approved private school if the
Burlington
prerequisites are shown.
[T]he review process is ponderous. A final judicial decision on the merits of an IEP will in most instances come a year or more after the school term covered by that IEP has passed. In the meantime, the parents who disagree with the proposed IEP are faced with a choice: go along with the IEP to the detriment of their child if it turns out to be inappropriate or pay for what they consider to be the appropriate placement. If they choose the latter course, which conscientious parents who have adequate means and who are reasonably confident of their assessment normally would, it would be an empty victory to have a court tell them several years later that they were right but that these expenditures could not in a proper case be reimbursed by the school officials.
By prohibiting prospective placement, Defendants would deny assistance to families that are not able to front the cost of a private non-approved school, without exception. Under Defendants’ reading of the IDEA, therefore, even in a situation as the one presented here where both the school and the parent agree that the child’s unique needs require placement in a private non-approved school and that there are no approved schools that would be appropriate, a destitute child would be left in an inappropriate program because the parents would not be able to front the tuition of private placement. Given the fragile state of many disabled children, and their dire need for constant and consistent care, even brief periods of inappropriate schooling could lead to tremendous educational, social, emotional, and psychological deterioration. Families of greater economic means would not be faced with such a grim prospect. It simply cannot be the case that an act designed to grant “all” disabled children access to needed services would undermine that very goal by making such access dependent upon a family’s financial situation.
In a recent case, the Third Circuit has more specifically recognized the relationship between meaningful access and economic means. In
Susquenita Sch. Dist. v. Raelee,
real only for parents who have the financial wherewithal to pay for alternative placement. While parents who reject a proposed IEP bear the initial expenses of a unilateral placement, the school district’s financial responsibility should begin when there is an administrative or judicial decision vindicating the parent’s position. The purpose of the Act, which is to ensure that every child receive a “free and appropriate education” is not advanced by requiring parents, who have succeeded in obtaining a ruling that a proposed IEP is inadequate, to front the funds for continued private education.
The burden that such an approach would place on many families is overwhelming. The cost of private education, especially in institutions specializing in teaching the learning disabled, is substantial. Families without means would be hard pressed to pay for private education in what will almost invariably be the significant time lapse between a ruling in their favor and the ultimate close of litigation. “The review process is ponderous.” Burlington,471 U.S. at 370 ,105 S.Ct. 1996 . Without interim financial support, a parent’s “choice” to have his child remain in what the state has determined to be an appropriate private school placement amounts to no choice at all. The prospect of reimbursement at the end of the litigation turnpike is of little consolation to a parent who cannot pay the toll at the outset.
Id.
at 86-87.
See also Komninos v. Upper Saddle River Bd. of Educ.,
In this case, there was agreement early on between New Paltz and Mrs. Connors that New Paltz could not provide D.C. with an appropriate education and that Montessori could. At that point, the Burlington prerequisites were met, and New Paltz was required to pay notwithstanding Montessori’s status as a non-approved school. Montessori’s non-approved status, therefore, is irrelevant to the fact of payment; the only issue is whether it affects the time of payment.
Given Carter, Burlington, and Rowley, a school’s non-approval status cannot be the justification for denying a child access to needed educational services in all situations. In particular, when a child’s access to a free and appropriate public education in a substantive sense conflicts with the state’s approval process, Carter instructs that the state’s approval process must give way. Such a situation arises when a parent does not have the financial means to front the cost of a non-approved private school. Without external support, the child would have no chance at what has already been determined to be his or her opportunity to receive an appropriate education. As a result, once the Burlington prerequisites relative to a non-approved private school are met, and a parent shows that his or her financial circumstances 6 eliminate the opportunity for unilat *806 eral placement in the non-approved school, the public school must pay the cost of private placement immediately. 7
Turning to the instant case, Plaintiff has presented no evidence that she is unable to front the tuition for D.C.’s placement at Montessori. While this may ordinarily require remand to the administrative agencies in order to allow them an opportunity to address Plaintiffs financial situation, Plaintiff has not even alleged that she is unable to front the cost of Montessori nor does it appear from the record that she ever complained of her financial situation prior to this litigation. As a result, Plaintiff cannot show a conflict between the state’s approval process and D.C.’s substantive right of access to a free and appropriate public education. Accordingly, Plaintiff does not fall within the scope of the financial circumstances exception described above.
Plaintiff also objects to being forced to repeatedly animate the due process machinery and incur the costs thereof in order to secure reimbursement. Provided New Paltz continues to concede that the Burlington prerequisites are manifest or same is found by an IHO or a court, there should be no need for Plaintiff to invoke the technical formality of seeking due process review in order to get reimbursement. Her right to payment is established and all that should be required is a payment demand letter. 8 Requiring anything beyond the demand letter would not serve the purpose of IDEA’S procedural safeguards and would only further deplete resources that should be allocated to the betterment of disabled children. 9
C. Mrs. Arons’ Fees
The only matter left to be examined is whether Plaintiff may recoup the cost of hiring Mrs. Arons as her representative at the various due process hearings. The IDEA provides that “[in any action or proceeding brought under this subsection, the court, in its discretion, may award reasonable attorney’s fees as part of the costs to the parents or guardian ... who is the prevailing party].” 20 U.S.C. § 1415(e)(4)(B) (1988 and Supp.1998). Though not explicit in her memorandum, Mrs. Connors implies that fees for lay advocates fall within the scope of § 1415(e)(4)(B) when that section is read in conjunction with § 1415(d)(1). Section 1415(d)(1) provides that “[a]ny party to any hearing conducted pursuant to subsections (b) and (c) of this section shall be accorded ... the right to be accompanied and advised by counsel and by individuals with special knowledge or training with respect to the
*807
problems of children with disabilities.” 20 U.S.C.A. § 1415(d)(1) (West Supp.1998). Defendants do not contest Plaintiffs assertion that she was a “prevailing party in the various settlement agreements or that attorney’s fees are available for “legal services rendered in connection with impartial hearings”,
Shanahan v. Board of Educ. of Jamesville-DeWitt,
Defendants cite
Arons v. New Jersey State Bd. of Educ.,
Civ.A. No. 85-209,
In affirming the district court, the Third Circuit noted that though the text of the IDEA provided for advice or assistance from “individuals with special knowledge or training”,
Arons v. New Jersey State Bd. of Educ.,
Similar to the New Jersey Administrative Code and contrary to the IDEA as interpreted by the Third Circuit, the New York Administrative Code provides for lay advocates to “represent” parents at due process hearings. See N.Y.Comp.Codes R. & Regs. title 8, § 200.5(c)(5) (1998) (“The parties to the proceeding may be represented by legal counsel or individuals with special knowledge or training ... and may be accompanied by other persons of their choice.”) (emphasis added). Further, parents as well as their “representative, shall have an opportunity to present evidence and to confront and question all witnesses at the hearings. Each party shall have the right to prohibit the introduction of any evidence the substance of which has not been disclosed to such party at least five days before the hearing.” N.Y.Comp.Codes R. & Regs. title 8, § 200.5(c)(9) (1998). The New York Administrative Code, therefore, provides for the performance of legal services by lay advocates.
Using the Third Circuit’s logic and ignoring New Jersey’s no-fee provision for the moment, it appears that both New York and New Jersey place experts on the “same footing” as legal counsel. New Jersey specifically rejects that implication by denying lay advocates a fee for representative services. *808 Unlike New Jersey, however, New York does not expressly condition a lay advocate’s right to represent a parent on a renunciation of fees for services performed. Although on first blush, then, New York permits the expert-legal counsel equality to stand such is not the case upon closer examination.
The New Jersey Administrative Code includes a mechanism to evaluate the experience and competence of an individual seeking to represent parents at a due process hearing. See N.J.Admin.Code title 1, § 1-5.4(3)(iv) (1998) (requiring non-lawyer applicant to submit a written description of “his or her relevant education, work experience or other qualifications related to the child’s condition.”). In addition, New Jersey provides for the imposition of sanctions on lay advocates if necessary. See N.J.Admin.Code title 1, §§ 1-5.5 and 1-14.14 (1998). New York has neither a screening/application procedure nor a method that governs sanctions for inappropriate lay advocate behavior.
In the absence of affirmative state action in promulgating regulations that govern the training and conduct of lay advocates, Plaintiffs request for Ms. Arons’s fees pursuant to § 1415(e)(4)(B) must be denied. Through education and experience in dealing with legal issues, attorneys receive rigorous training that lay advocates, in most situations, cannot parallel. While Mrs. Arons has proven herself to be a competent, capable, and effective advocate for parents dealing with IDEA issues, a ruling in her favor would also inure to the benefit of those who are less competent and less scrupulous unless such a ruling was confined in application by appropriate regulations that, for example, set forth specific standards individuals had to meet in order to qualify as IDEA lay advocates.
See Peniman,
That is not to say that Mrs. Arons cannot collect her fees as an educational consultant or as a witness.
See, e.g., Arons,
5/5/95 1.5 hours Development of evidence list
5/7/95 4.0 hours Tidal preparation
5/12/95 6.0 hours Hearing
5/14/95 1.5 hours Trial preparation
5/18/95 1.0 hours Hearing
PL’s Mem.Ex. D.
12/27/95 3.0 hours Silveira to Arons letter
03/13/96 2.0 hours Preparation for hearing
03/03/96 3.0 hours Hearing
06/11/96 4.0 hours Preparation for trial
06/11/96 4.0 hours Hearing negotiations
Pl.’s Mem.ExJ. The total for the above services is $3,000. While this list shows activities Mrs. Arons did in a general sense, it does not break down her services sufficiently to differentiate between those pertaining to legal representation and those pertaining to consultation, advice, or any other compensa-ble activity. As a result, a calculation of fees owed cannot be done at this time. If Plaintiff wishes, she may submit an itemized fee schedule provided the schedule was produced contemporaneously with Mrs. Arons’s services.
Accordingly, Defendant’s motion for summary judgment is hereby GRANTED.
IT IS SO ORDERED.
Notes
. The following is a review of the statutory framework of the IDEA as it existed during the time of the events giving rise to this lawsuit. Congress recently amended the IDEA, Pub.L. No. 105- 17, 111 Stat. 37 (1997), but these amendments did not take effect until July 1, 1998, long after the time period relevant to the facts described herein.
. More specifically, § 1401(a)(18) provides that a “free appropriate public education” means special education and related services that—
(A) have been provided at public expense, under public supervision and direction, and without charge,
(B) meet the standards of the State educational agency,
(C) include an appropriate preschool, elementary, or secondary school education in the State involved, and
(D) are provided in conformity with the individualized education program....
20 U.S.C. § 1401 (a)(18) (1988).
. See, e.g., Pl.'s Mem., Ex. H, Letter from Garrett Silveira to Marilyn Arons of December 13, 1995 (stating that whether including Montessori on D.C.’s IEP is appropriate or not "is a pure legal issue for which no testimony is necessary.").
. NYSED’s EIP program is used when a student’s educational needs cannot be met by instate or out-of-state day/residential programs that are approved by NYSED. Rothfuss Aff., Ex. J. In that case, the school district works with the Residential Placement System to place the student at a school in another state that has been approved for residential placement by the host state. Id.
. As a practical matter, if Plaintiff succeeds in the case at bar, it will be Defendant's responsibility to effect the necessary change. Defendant is responsible for approving all contracts for educational services that public schools enter with private schools. N.Y.Educ.Law § 4402(2)(b)(2) (McKinney 1995). At the moment, no contract for private placement will be approved "unless ... (ii) such placement will be in a private school approved by the commissioner for the education of students with disabilities”. N.Y.Comp.Codes R. & Regs, title 8, § 200.6(i)(2). Plaintiff, in part, seeks a change in the application of this policy. In short, bringing suit against an individual other than Defendant would be ineffectual.
. The determination whether a parent is not financially able to front the cost of private place *806 ment should be made in the first instance by the IHO or SRO; i.e., the parent should exhaust the state administrative procedures before raising the claim in court proceedings. Though the specifics of the calculation are not given here, such evaluations are regularly done in the educational setting relative to determinations of financial aid. Schools should draw from similar experience and expertise in order to fashion an appropriate calculus here.
.This rule comports with the "broad discretion”,
Carter,
. This should not be an issue here because New Paltz did say through Attorney Silveira that it was willing to resolve the matter without "the needless expense of a hearing." Pl.'s Mem., Ex. H, Letter from Garrett L. Silveira to Marilyn Arons of Dec. 13, 1995.
. In
Antkowiak by Antkowiak v. Ambach,