TN 19 (03-93)
HI 00805.151 The Date of Birth to Be Established
1. Primary considerations
The primary considerations in deemed IEP cases are that the individual:
believes he/she was born on a certain date in reliance on one or more documents containing information as to DB; or
is confused about the correct DB because of erroneous or conflicting information on documentary evidence of age; and
missed the IEP because of the belief, based on erroneous or conflicting documents, that he/she was too young to enroll during the IEP.
NOTE: A deemed IEP may not be established for a person merely because some of the evidence submitted indicates that he/she is younger than his/her actual age.
2. Different month of birth
If the allegation and the document being used to establish the deemed IEP disagree as to month of birth, the month indicated on the document will be used unless the month of birth alleged is established by best evidence.
If there is no allegation as to month of birth, the month will be taken from the document that is being used to establish the deemed IEP.
3. Rules for establishing date of birth - General
Usually, the individual alleges a DB and submits a document to corroborate that allegation. In rarer situations, the individual is unable to corroborate an allegation or may state that he/she does not know the correct DB. Following are the rules for establishing the DB in cases involving a deemed IEP.
4. Rule a. DB allegation and a document agree
Where the DB allegation and a document agree: Use the DB alleged.
If the individual submits several other documents showing different dates of birth, some of which may be more advantageous; the fact that the individual alleges a date and submits even one corroborating document is sufficient to establish the alleged DB for deemed IEP purposes.
5. Rule b. Vague DB allegation
The individual does not know the correct DB, but believes he/she is about age 65 or younger. The individual submits (or obtains) various documents, some of which indicate that he/she is under age 65. The DB will be used which is closest to, but does not make the person older than, the DB finally established.
6. Rule c. Definite allegation, but no proof of it
The individual gives a definite allegation as to DB and, according to that allegation, is about age 65 or younger. The person is unable to submit any evidence of the date alleged. However, some of the documents submitted (or obtained) indicate that the person was under age 65 during all or part of what is established as his/her actual IEP. Since this situation is comparable to that in Rule b. (i.e., the person does not know when he/she was born), Rule b. will be followed.
7. Rule d. All documents show age 65 or over in IEP
The same or comparable situation described in Rule b. or c. exists but all the documents indicate that the individual was age 65 or over during the IEP. No deemed IEP may be established. The requirement that the individual have missed the IEP in the belief (based on a document) that he/she was too young to enroll during the actual IEP is not met.
8. Rule e. No evidence of vague allegation
The individual alleges he/she is over age 65 (whether the person gives a definite DB is immaterial), but has no evidence to support that allegation. Documents submitted or obtained show various dates of birth. The DB will be established for deemed IEP purposes as in Rule b. That is, the DB will be used which is closest to, but does not make the person older than, the DB finally established.