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The Joint Committee on Taxation estimate [JCX-21-22 (Dec. 22, 2022)] scored the hardship self-certification provision as raising only $358 million for fiscal years 2023-2032. While one cannot read the mind of a Member of Congress, here’s another explanation: The SECURE 2022 provisions for accepting a claimant’s statement about her hardship or unforeseeable emergency approximate what already has been the situation with many plans. Participants learn, often quietly and quickly, how to mark a website app or paper form to state a claim the service provider processes in good order with nothing that requires any further instruction from the supervising fiduciary.

The answer likely will be to make a good-faith effort to comply. This is not very helpful and everyone whose good-faith effort doesn't mesh with future final guidance will have to change what they implemented. We do have a precedent with our experience with the pandemic. The world shut down in March 2020 and Congress went on a to pass a lot of legislation permitting bending the rules to make money available from retirement plans. There was very little guidance, and the shutdown lasted longer than anticipated. The significant cuts in funding to the agencies that preceded the pandemic had already hampered their ability to recover once we learned how to cope with pandemic. Dare we imagine a scenario where industry associations, major recordkeeping firms, benefits consulting firms and ERISA law firm come together collectively to provide guidance?

Yes, follow the instructions and next time when an employer adopts a plan that has a retroactive effective date that starts in the prior year, don’t file a Form 5500 for that retroactive year. Keep the executed SB on file though to include it with the first filed Form 5500 (year #2).

We use a TransUnion service - with pretty good success. For the tough ones, including those deceased, we use a variety of techniques - including calling the coroner in the county of last residence to ask who claimed the body! Surprisingly, most of the coroners are more than happy to help (apparently carrying on a real "live" conversation is something they appreciate!)

Napa-Net Article ARA comments Nevin E. Adams, JD 6/8/18 A regional office of the Employee Benefit Security Administration has been threatening enforcement actions against plan sponsors who correct the late deposit of participant contributions or loan repayments without making a formal submission under the DOL’s Voluntary Fiduciary Correction Program (VFCP). The EBSA letter, signed by Chris Davis, Associate Regional Director of the agency’s Chicago Regional Office, threatens “alternative enforcement measures” if the plan sponsor does not file a VFCP application within 60 days of receiving the letter. The letter is apparently being sent to plan sponsors who, on Form 5500, reported the late deposit of participant contributions and/or loan repayments and correction outside of VFCP. In response, the American Retirement Association (ARA) has filed formal comments with Mable Capolongo, Director of EBSA’s Office of Enforcement, objecting to the threatening language in the letter. Noting that, “In effect, the letter is telling plan sponsors the DOL may open a full blown investigation unless a VFCP application is filed right away,” the ARA letter points out that the “inappropriate” threats are “clearly intended to scare plan sponsors into participating in what is supposed to be a voluntary program,” and “contradictory to the DOL’s own longstanding guidance with regard to VFCP.” The ARA notes that the language “flies in the face of the President’s efforts to reduce regulatory burdens and should cease immediately.” Commenting that, “Plan sponsors should not be threatened with the heavy hand of a government investigation simply because they choose not to use a voluntary government program,” the ARA letter requests that the DOL immediately cease threatening that “alternative enforcement measures” may be taken against plan sponsors who self-correct late deposit violations outside of VFCP, and recommends that to reduce regulatory burdens, the DOL add a self-correction component to VFCP as soon as possible. The latter “ask” refers to numerous comment letters from the ARA recommending the addition of a self-correction component to VFCP. “We have regularly brought this subject up in meetings with the DOL and we are disappointed nothing has moved forward over the last nine years,” the ARA reminds, noting that adding a self-correction component is directly in line with the President’s directive to reduce regulatory costs and burdens.