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If the Plan's Trust documents allow it it can be done. It would be a non-qualifying asset so higher bonding might be need to avoid annual audit and you can't file SF The biggest questions is would this be a prohibited transaction? I would at a minimum recommend they have an ERISA attorney review to make sure that the physician practice isn't a party in interest with respect to the surgery center.

I thought it was 210 days after the end of the plan year. However, to satisfy nondiscrimination regarding benefits, rights, and features, and depending on what is being amended, you may need to notify employees earlier. In your example, if an HCE knows about the option and wants to use it, then you should notify all the affected participants to avoid any perceived discrimination.

As John pointed out, it’s an effective opportunity issue. The provision is not effectively available to employees if they aren’t aware of it.

DB plan or DC plan? There were no required RMDs for 2020 for DC plans so if it was a CRD in 2020 it can be rolled back until 12/31/2022. If it was a DB plan the RMDs were still required an can't be rolled back.

"A quick phone call" - with the DOL? I like your sense of humor. I haven't had good luck with phone calls to the DOL, so your experience has obviously been better. I will grant you that they are generally quicker than the IRS... Thanks for the response.

Recent discssion...

Not that I am aware of.

Is it true that another consequence of this type of design is that the plan will be unable to use the ABT to pass coverage? I think the biggest danger with this design is the loss of the top heavy exemption (especially for plans using the matching safe harbor who have high turnover or high workforce growth). Essentially, the top heavy status of the plan will not be determined until the next plan year has already begun. Thus, if the plan flips into top heavy status, the sponsor is stuck with the minimum top heavy contribution for at least one year. I try to steer sponsors away from this dual eligibility safe harbor plan design. If they won't relent, make sure you keep a close watch on the TH ratio and try to warn the sponsor a year ahead about the possibility of the plan becoming TH so they have time to amend the plan.

I still think the investment houses would do a better job. Again, I think it's an important issue, but I don't think it needs to be in the SPD. Do you put investment diversification info in the SPD?

The SPD is provided very infrequently in most cases, and as such may not be the best vehicle for constantly-changing information relating to cybersecurity. I think Belgarath has the right idea about providing the information outside the SPD. Surely they provide account statements and a SAR at least annually? The "cybersecurity notice" could be enclosed with those documents. A more frequent notice cadence would allow the plan sponsor to keep up with evolving best practices.

This type of plan design relies on the ability to disaggregate the portion of the plan that covers otherwise excludable employees. Under this design, you have two groups of employees and two disaggregated plans. The first plan covers the group of employees who have satisfied the minimum age and service conditions under 410(a). That plan satisfies the ADP test by way of the safe harbor contribution, which is provided to all NHCEs (and optionally HCEs) who are eligible to defer. The second plan covers those employees who have not yet satisfied the minimum age and service conditions under 410(a). This plan will typically not cover any HCEs, since an employee has to have prior year compensation above the applicable limit to be considered an HCE, and employees who do not have a year of service will typically not have prior year compensation that high (if they have any at all). This plan satisfies the ADP test automatically as long as it covers no HCEs. If you have any employee who will be an HCE before they meet the statutory eligibility requirements, you can have a problem with the otherwise excludable group. Usually this would happen if someone who is a 5% owner by attribution (such as the owner's spouse or child) becomes an employee. If that is a concern you may want to specify in the plan document that 5% owners have to complete a year of service before they become eligible to defer. As sb0828 mentioned, if the plan is top heavy, they lose the top heavy exemption with this plan design. If we are talking about a 3% safe harbor non-elective contribution, then the sponsor is going to end up making the 3% contribution for all employees, except those who terminated before meeting statutory eligibility. The contribution for the employees who have not met statutory eligibility can be subject to a vesting schedule, although if the employer was not intending on making other contributions which would be subject to a vesting schedule then this may be more administrative hassle than they were prepared to deal with.

The lawyer in me comes out with questions like this. First, it is NOT required - and that probably is the biggest reason I have for NOT including that language in a "plan document." It's inclusion would then set an expectation, if not an obligation on the part of the plan sponsor and service providers dealing with that data, which may, or may not, be consistent with what they are actually doing - at any given point in time. This is a huge issue among recordkeepers (one of which I work for) and it is extremely fluid. I can tell you that recordkeepers routinely share their knowledge of "threats" but do NOT share their approaches to safe-guarding data (and to do so would itself be a data security breach). We keep our data security protocols very very close to the vest, and are constantly reviewing them and changing them - lest the bad guys get wise and figure out how to subvert the protections. Second, while educating participants on general identity theft issues, might not the inclusion of a discussion about the risks in an SPD prompt a pull back from participation? That could actually be a bigger (retirement readiness) risk than the risk of an individual's account being hacked or data breached. In any event, most reputable service providers would make a participant whole for the loss of an account balance due to nefarious activity (provided the participant wasn't negligent themselves - like posting their identifying info online). We DO educate our plan sponsors on the risks, provide them with various assurances, AND provide a "promise" to plan participants that if they aren't negligent (there is a laundry list of things they must do or must not do to "comply"), that we will make them whole. So far, we've not seen much in the way of service providers being "hacked" but we have seen data from other hacks (Target, etc.) used to attempt to claim to be a participant and request a distribution ACH'd to a newly established account (from which it immediately moves off-shore). Protocols exist to identify and intercede there as well.

1. Yes 2. There is no mandated method, any reasonable method should be fine. A reasonable method might be to allocate the contribution in proportion to the pay credits earned for the year.

Who is Mike Baker? :-0 And I see nothing inappropriate in this thread. In fact, I find it kind of interesting. The OP gets kudos for finding the right subsection within which to post.