The primary considerations in deemed IEP cases are that the individual:

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  believes the individual was born on a certain date in reliance on one or more documents containing information as to DB; or

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  is confused about the correct DB because of erroneous or conflicting information on documentary evidence of age; and

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  missed the IEP because of the belief, based on erroneous or conflicting documents, that the individual was too young to enroll during the IEP.

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.

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 the individual does not know the correct DB. Following are the rules for establishing the DB in cases involving a deemed IEP.

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.

The individual does not know the correct DB, but believes the individual is about age 65 or younger. The individual submits (or obtains) various documents, some of which indicate that the individual 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.

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 the person's actual IEP. Since this situation is comparable to that in Rule b. (i.e., the person does not know when the person was born), Rule b. will be followed.

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 the individual was too young to enroll during the actual IEP is not met.

The individual alleges the individual 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.