Irrevocable Election (Opt Out) and Coverage

It is my understanding that a person who "opts out" (irrevocable election) is not an excludable employee for purposes of the coverage test, and is treated as not benefiting.

There is only one NHCE in the plan and this person signed an irrevocable election.  (Would have been eligible otherwise.)  Coverage fails.  Plan document allows us to bring in enough NHCEs to pass coverage.  Can we still give the opt out person an allocation to pass coverage?

I believe you actually have to - and see if your document has any overriding language in the section permitting the waiver indicating as such that the sponsor may have to make contributions anyway.

Agreed, you have to pass coverage and that is the only way. Most plans that still allow the opt out also have provision where sponsor may revoke if necessary to satisfy testing. If person was only NHCE at the time, then such opt out election never should have been accepted at the time. 

Thanks so much!