Prior year testing Question

I have a plan that in 2021 had 1 eligible NHCE that did not defer, and that person terminated employment in 2021.  In 2022 there are no eligible NHCEs. Even though the ADP Test is based on Prior Year testing with the 2021 NHCE ADP% of 0%, can the test can still be deemed to pass because only HCEs are eligible/participating in 2022?

No, you are using prior year testing and the prior year NHCE percentage is 0%. Probably should have amended to current year testing before the end of 2022.

Did that NHCE have a year of service?  And was over age 21?

Amend to a safe harbor non elective plan for 2023.

Might as well.....and he can exclude HCEs from the SH if he doesn't want to feel it's even mandatory for himself.