ENTRY GRANTING DEFENDANTS' MOTION TO DISMISS

BARKER, Chief Judge.

The parents of L.M. (Plaintiffs), a disabled student, ask us to review the Indiana Board of Special Education Appeals' (BSEA) decision regarding L.M.'s rights under the Individuals with Disabilities Education Act (IDEA). 20 U.S.C. § 1400 et seq. Brownsburg Community School Corporation and West Central Joint Services (Defendants) move to dismiss, contending that Plaintiffs failed to exhaust their administrative remedies under the IDEA. For the reasons discussed below, Defendants' Motion to Dismiss is GRANTED.

I. STATEMENT OF FACTS

In 1996, Plaintiffs disagreed with the teaching methods proposed in the IEP for L.M. and disputed the plan's effectiveness. (McDowell Aff., Ex. 1, at 6.) Before the start of the 1996-97 school year, L.M.'s parents placed him in a private school for the hearing impaired located outside the State of Indiana. (Id.) At the end of the 1996-97 school year, L.M. was diagnosed with additional handicaps, possibly including Attention Deficiency Hyperactivity Disorder. (Id.)

In September and October 1997, L.M.'s IEP was again reviewed by a case conference committee. (McDowell Aff., Ex. 1, at 7.) Although his parents agreed with the goals and objectives of the program, they disagreed with L.M.'s placement and proposed methodology in the local special education program. (Id.) During the 1997-98 school year, L.M. remained enrolled at the out-of-state private school. (Id. at 8.) Subsequently, L.M.'s parents requested review of the proposed 1997-98 IEP by an independent hearing officer. On February 17, 1998, the hearing officer upheld the IEP as free appropriate public education under the IDEA and allotted the cost of L.M.'s out-of-state private schooling to his parents. (McDowell Aff. at 1; McDowell Aff., Ex. 1 at 10-11.) The hearing officer's decision also informed Plaintiffs how they could appeal the decision under the IDEA. (McDowell Aff., Ex. 1 at 12-13.) Certified copies of the decision were received by both parties through counsel on February 18, 1998. (McDowell Aff., Ex. 2 at 3.)

On March 23, 1998, counsel for Plaintiffs filed a petition for review of the hearing officer's decision through the BSEA. Two days later, Defendants filed a Motion to Dismiss Petition for Administrative Review as untimely. Because counsel had received the decision of the hearing officer on February 18, 1998, the thirty day limitation period for seeking administrative review had run on March 20, 1998. Id.

On April 7, 1998, the BSEA dismissed Plaintiffs' petition for failure to conform with the timing requirements of Ind.Admin. Code tit. 511, r. 7-15-5(u)(2) and Ind.Admin. Code tit. 511, r. 7-15-6(e)(4). Id. Appended to the dismissal was an "Appeal Right" which allows a party to seek judicial review of a BSEA decision within thirty days of the decision. Id. at 5. Pursuant to this "Appeal Right," Plaintiffs' counsel filed a "Petition for Judicial Review" of the decision of the hearing officer in Hendricks County Circuit Court on May 4, 1998. Thereafter, Defendants removed the case to this Court, claiming original jurisdiction under 20 U.S.C. § 1400 et seq., the federal statutory authority that implements the IDEA.

On June 30, 1998, Defendants filed a Motion to Dismiss this action, claiming that Plaintiffs failed to exhaust their administrative remedies, warranting dismissal for want of jurisdiction, (see Fed.R.Civ.P. 12(b)(1)), and failure to state a claim upon which relief can be granted, (see Fed.R.Civ.P. 12(b)(6)). We ordered Plaintiffs to show cause why the motion should not be granted on July 22, 1998, and Plaintiffs responded on August 14, 1998.

II. STANDARD OF REVIEW

Federal Rule of Civil Procedure 12(b)(6) permits the dismissal of a claim for "failure to state a claim upon which relief may be granted." When considering a motion under this rule, the Court must examine the sufficiency of Plaintiffs' complaint, not the merits of the lawsuit. Triad Assoc. v. Chicago Housing Auth., 892 F.2d 583, 585 (7th Cir. 1989). Dismissal is appropriate only if it appears to a certainty that Plaintiffs cannot establish any set of facts which would entitle them to the relief sought. Hishon v. King Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59 (1984); Mosley v. Klincar, 947 F.2d 1338, 1339 (7th Cir. 1991). We accept as true all well-pleaded factual allegations and draw all reasonable inferences in favor of Plaintiffs. Dawson v. General Motors Corp., 977 F.2d 369, 372 (7th Cir. 1992).

III. DISCUSSION

The IDEA seeks to assure that all children with disabilities have access to a free appropriate public education. See 20 U.S.C. § 1400(c). Within this statutory scheme, "states must provide the parents or guardians of a disabled child procedural safeguards with respect to . . . the provision to that child of a free appropriate public education." Smith, 916 F. Supp. at 874; see 20 U.S.C. § 1415(a). One such safeguard allows a parent or guardian the opportunity to bring forward complaints regarding the "educational placement of the child," . 20 U.S.C. § 1415(b)(1)(E), and guarantees the right to an "impartial due process hearing," conducted in accordance with "State law or the State educational agency." 20 U.S.C. § 1415(b)(2).

In this state, the Indiana Administrative Code sets forth the details of the due process hearing and governs an appeal of a decision reached through this process. Smith, 916 F. Supp. at 875; see also Ind.Admin. Code tit. 511, r. 7-15-6. One provision allows the BSEA to dismiss a petition for review if it fails to comply with the timing requirements prescribed. Ind.Admin. Code tit. 511, r. 7-15-6(h). Under Indiana law, a petition for review must be "filed within thirty (30) calendar days of the date the hearing officer's decision is received by the party." Ind.Admin. Code tit. 511, r. 7-15-6(e)(4). Here, Plaintiffs failed to file a petition for review within the timing requirements specified. As a result, it was within the discretion of the BSEA to dismiss the claim, which they did.

For a federal court to hear claims under the IDEA, the parent or guardian must have first "exhausted [the] administrative remedies [available] under state statutes and regulations." Smith, at 876 (citing Family Children's Center, Inc. v. School City of Mishawaka, 13 F.3d 1052, 1053 (7th Cir.), cert. denied, 513 U.S. 961, 115 S.Ct. 420, 130 L.Ed.2d 335 (1994)). In Indiana, a prerequisite to filing for judicial review of an administrative agency is to "exhaust all administrative remedies available" within the purview of procedures set for that state agency concerning administrative decisions and their subsequent review. Ind. Code § 4-21.5-5-4. Also, under the Administrative Adjudication Act, Indiana Courts have held that, "generally, the failure to exhaust administrative remedies waives the right to judicial review." Rambo v. Cohen, 587 N.E.2d 140, 143 (Ind.Ct.App. 1992). Specifically, "[b]ecause Indiana administrative regulations give a parent or guardian both an opportunity to an impartial due process hearing and a right to appeal the . . . decision rendered in such a hearing to the Board of Special Education Appeals, this Court's [ability] to hear Plaintiff's case depends on Plaintiff's first having exhausting these administrative remedies." Smith, at 876.

The issue before us is whether a dismissal by the BSEA on timeliness grounds is appealable to this Court. Plaintiffs argue that they have a right to appeal under Ind.Admin. Code tit. 511, r. 7-15-6(p), which provides in part: "[a]ny party disagreeing with the decision of the state board of special education appeals may appeal to a civil court with jurisdiction." Plaintiffs, however, misinterpret this statutory language. The "decision" mentioned in section (p) is the result of "an impartial review" that "review[s] the entire record of the due process hearing to ensure the procedures of the hearing were consistent with requirements [under the Indiana Administrative Code]." Ind.Admin. Code tit. 511, r. 7-15-6(n)(1), (k). Here, the BSEA dismissed Plaintiffs' claim on procedural grounds. They did not conduct "an impartial review" of the substance of the case; therefore, the dismissal does not constitute a "decision" appealable "to a civil court with jurisdiction." See Ind.Admin. Code tit. 511, r. 7-15-6(p). In this case, Plaintiffs failed to pursue their available administrative remedies under Indiana law when they neglected to appeal to the BSEA in a timely fashion. Accordingly, Plaintiffs have not exhausted their administrative remedies and dismissal under 12(b)(6) is proper.

Relevant case law supports this reading of the statute. Language from the recent case of Norris v. Board of Educ. of Greenwood Community School Corp., 797 F. Supp. 1452 (S.D.Ind. 1992), illuminates the requirements of exhausting administrative remedies under Indiana law. There, the plaintiffs attempted to bring an action in federal court without first perfecting an appeal to the BSEA. The court confirmed that seeking review from BSEA is a necessary step before proceeding to federal court under IDEA. 797 F. Supp. 1452, 1467-68. Specifically, "[i]f a party is aggrieved by the hearing officer's findings and decision, then the party cannot bring a federal district court action until the party has appealed to the BSEA. . . . This level of review cannot be sidestepped." Id. Finally, unless "a party is `aggrieved' by a decision of the BSEA," further administrative review is required. Id.

Although an appeal was filed with the BSEA in this case, its untimely nature resulted in a review of procedural requirements that did not reach the substance of the hearing officer's decision. A review by the BSEA contemplates a substantive component — evaluating the hearing officer's decision on the merits — that was absent in this case. In particular, the right to review by the BSEA is an "opportunity . . . to appeal the findings and decision rendered" by the hearing officer. Smith, 916 F. Supp. 872, 876; see 20 U.S.C. § 1415(c) (emphasis added).

In this case, the decision to dismiss by the BSEA looked no further than the dates involved for filing under the Indiana Administrative Code. No review of the hearing officer's findings or decision occurred. Further, attempting to appeal the dismissal in this case sidesteps an essential part of the administrative appeal process established under Indiana and federal law. Because the BSEA decision did not reach the merits of the hearing officer's determination, the dismissal does not amount to a substantive decision that may be reviewed by a federal district court. Accordingly, Defendants' Motion to Dismiss is GRANTED.

IV. CONCLUSION

It is so ORDERED.