Is a temptation to backdate documents a thing of the past?

[Peter Gulia]

About half a generation ago, someone might face a pressure to help a plan’s sponsor date a document falsely. https://benefitslink.com/boards/topic/44420-ethical-dilemma/

Now, many service providers use software and internet delivery to present a ready-to-sign document, and expect a plan sponsor’s adoption or approval through DocuSign or another e-sign tool.

Is an ink-on-paper signature such a disruption that it’s too hard to pretend a document was signed sooner than when the plan sponsor signed it?

Are there still situations in which a temptation to date a document falsely persists?

[EBP]

I agree that half a generation ago, there was pressure. The consequences to late adoption were so much greater then - basically disqualification of the plan. Because of the introduction and expansion of EPCRS since, I don't believe there is that pressure anymore. EPCRS has allowed late/nonamender correction for some time now through VCP, and subsequent expansion of EPCRS makes self-correction possible in most cases and VCP still available in the others.

Also, with the progession from all individually-designed documents to mainly pre-approved documents, the consequences of late adoption are usually minimal. If a pre-approved plan was not timely amended, it's not disqualified; it's just considered individually-designed.

I have an audit case right now where I discovered that plan documents (that were not our responsibility) that should have been adopted by 7/31/22 weren't signed until 9/7/22. I'm confident in our position that self-correction already happened within the correction period under EPCRS. 

For cases we've had that don't qualify for self-correction because they were or are being corrected after the self-correction window has passed, we do a VCP submission and bring the now IDP (or always IDP) up to date.

Either way, I don't think there really exists a reason for backdating to correct any more.  

(P.S. Back in the day, the attorney I worked for always had us type in the date signed (but not after the fact) before we sent out a document for signature, as a paternalistic way to make sure the client who often didn't appreciate the importance of the adoption date, didn't screw it up (we had lots of doctor clients). That was also in the day where we mailed everything and got wet signatures, so it would take much longer to find out someone hadn't signed something at all, or on time, and when the result could be disqualification.)

[fmsinc]

State Judges have no problems entering nunc pro tunc QDROs or Judgments: (i) unless the law mandates otherwise, or (ii) unless the parties fail to request it in a timely manner.   

The PPA of 2006 had no problem providing post-mortem or posthumous QDROs. 

Caselaw in Maryland permits post-mortem entry of an EDRO with respect to a Maryland State Retirement and Pension System Plan.  

I have prepared Memos dealing with Post Bankruptcy QDROS

I have always wondered why you Administrators are so frightened to do ANYTHING to correct an honest mistake unless you can find a law or a regulation or of Plan Document authorization to do to. 

The key word in your inquiry is "falsely".  Nuance matters. A mistake can be false but not purposeful or intentional or intended to accomplish an immoral or illegal purpose. Or maybe it was intended a accomplish an immoral or illegal purpose.   If I call one of my 5 daughters by their wrong name (all the time) what sort of statement have I made?  

 

 

[Peter Gulia]

EBP, thank you for your helpful explanations about ways the consequences of an untimely adoption are lessened.

[John Feldt ERPA CPC QPA]

An amendment to end safe harbor was created in February but was actually signed back in December?

Client has no new plan document for 2024, signing one now and refusing VCP?

Due to human nature, when a sentence starts with “Is there still a Temptation .  . .”, I think the answer likely “yes” regarding just about anything that follows. 

[Peter Gulia]

I suppose I shouldn’t have asked whether there are situations with a temptation, but rather whether the tempted see that the evidence electronic regimes leave behind makes it easy for an examiner to detect a falsity.