The Bipartisan Budget Act of 2018 (H.R. 1892) was signed into law on Feb. 9, 2018. The Budget Act makes several changes to retirement plan rules, both now and in the near future.

Current rule changes           

Section 20102: California Wildfire Disaster Victims: Distributions of up to $100,000 from an eligible retirement plan (e.g., a qualified plan, 403(b) plan or 457(b) plan) are allowed on or after Oct. 8, 2017, and before Jan. 1, 2019, without being subject to a 10 percent early withdrawal penalty. This rule applies to individuals who sustained losses to a home in a California wildfire disaster area (see below). The home must have been a person’s “principal place of abode” at some time between Oct. 8, 2017, and Dec. 31, 2017. These distributions may be repaid to the eligible retirement plan at any time within three years and essentially treated as rollover contributions.

The following California counties are all included in the wildfire disaster area: Butte, Lake, Los Angeles, Mendocino, Napa, Nevada, Orange, San Diego, Santa Barbara, Solano, Sonoma, Ventura and Yuba. All of these counties were declared eligible for individual assistance and/or public assistance by the Federal Emergency Management Agency (FEMA).

Also, hardship distributions that were received by a participant after March 31, 2017, and before Jan. 15, 2018, to buy or build a home in a California wildfire disaster area — but which homes could not be bought or built on account of the wildfires — may be repaid to the qualified plan or 403(b) plan, as applicable. The repayment may be made at any time from Oct. 8, 2017, through June 30, 2018.

Further, the maximum loan available to affected individuals under a qualified plan, a 403(b) plan or a governmental plan (whether or not qualified) is — from Feb. 9, 2018, through Dec. 31, 2018 — increased to $100,000 instead of $50,000. And, finally, with respect to any loans outstanding on or after Oct. 8, 2017, any repayment on the loan due between Oct. 8, 2017, and Dec. 31, 2018, is delayed for one year.

If a plan desires to implement these rule changes, they can be put into effect now, although the plans can be retroactively amended to reflect those changes at any time until the last day of the first plan year beginning on or after Jan. 1, 2019 (or such later date as announced by the IRS).

Section 41104: Tax Levy Return Rollovers: The IRS can levy a person’s assets in an eligible retirement plan (e.g., a qualified plan, 403(b) plan or 457(b) plan) to satisfy a federal tax lien. In some circumstances, such as a premature or wrongful levy, the IRS will return the property to the person under Code Section 6343. The amount returned to the individual by the IRS, plus interest at the overpayment rate under Section 6621, can now be contributed by the individual: (1) back into the retirement plan, if permitted by the plan; or (2) into an individual retirement plan. The amount is treated as a rollover, and it must be contributed no later than the due date (excluding extensions) for filing taxes for the year in which the amount was returned by the IRS. The rule applies to certain returns of levied property beginning after Dec. 31, 2017. A plan wishing to permit such contributions will need to be amended accordingly.

Future rule changes

Section 41113: Elimination of 6-Month Post-Hardship Ban on Contributions: The Budget Act orders the Secretary of the Treasury to modify Treasury Regulation 1.401(k)-1(d)(3)(iv)(E) by deleting the six-month prohibition on contributions after taking a hardship withdrawal. The revised regulations will apply to 401(k) plan years beginning after Dec. 31, 2018.

Section 41114: Expansion of Hardship Availability: The 401(k) rules are amended to expand the types of contributions that can be distributed on a hardship. Those contributions now include profit-sharing contributions, qualified non-elective contributions (QNECs) and qualified matching contributions (QMACs), as well as earnings on any of those amounts. In addition, a participant is not required to take a loan before qualifying for a hardship distribution. These rule changes apply to plan years beginning after Dec. 31, 2018.

Sections 30421 – 30424: Joint Select Committee on Solvency of Multiemployer Pension Plans: The purpose of the Joint Select Committee is to provide recommendations and propose bills designed to to improve the solvency of multiemployer pension plans and the Pension Benefit Guaranty Corporation (PBGC). It is a bipartisan committee consisting of 16 members, four from each party from both the Senate and the House of Representatives. Any bills or legislative language proposed by the committee will face a streamlined process to get them through the Senate, but not through the House.

As previously noted, the individual mandate under the Patient Protection and Affordable Care Act (also known as the ACA, or more informally as Obamacare) still applies in 2018. Finding affordable coverage to avoid the penalty is essential.

One option available to individuals and families is joining a “health care sharing ministry” (HCSM) under Section 5000A of the Tax Code. If an individual is covered by an HCSM in any given month in 2018, then the individual will not be subject to the tax penalty for that month.

According to the Alliance for Health Care Sharing Ministries, there are 104 HCSMs operating in the U.S., providing coverage to nearly 970,000 individuals.

Under federal law, an HCSM must meet six criteria:

• It is a 501(c)(3) tax-exempt organization;
• It has existed and operated continuously at all times since December 31, 1999;
• It conducts an annual audit that is made available to the public upon request;
• Members share common ethical or religious beliefs;
• Members share medical expenses in accordance with their beliefs (and regardless of the state in which a member resides or is employed); and
• Membership is not cancelled after developing a medical condition.

HCSMs do not offer traditional health insurance coverage. Rather, they offer a “bill-sharing” program, in which members pay each other’s medical bills. At least 30 states have passed laws exempting HCSMs from state insurance requirements. As a result, HCSMs are largely unregulated by the states or the federal government.

Membership in an HCSM is typically much less expensive than traditional health insurance on a state exchange or otherwise. But there are a lot of potential drawbacks. For example:

• Benefits and coverage are not guaranteed, even if a member makes required contributions.
• An HCSM could become insolvent and claims may not be paid as expected.
• Participants have limited rights to appeal denials of coverage and/or bring lawsuits.
• An HCSM may have a preferred provider network; so an individual’s current providers may not participate.
• Unlike exchange plans, which must provide certain types of coverage under federal law, an HCSM typically has many exclusions from coverage. For example, they may not cover:

• Preexisting conditions;
• Routine or preventive care;
• Anything related to an “unbiblical” lifestyle, such as sexually transmitted diseases, contraception, and substance use disorders;
• Mental/behavioral health;
• Durable medical equipment (DME); and
• Many other categories of conditions and treatments.

If you are considering joining an HCSM, you should review the details of the program to determine whether the coverage it offers is right for you and your family.

On January 22, 2018, the U.S. Supreme Court requested the Solicitor General’s opinion on whether a plaintiff can simultaneously bring a claim for benefits and a claim for breach of fiduciary duty under the Employee Retirement Income Security Act of 1974 (ERISA). A request for the view of the Solicitor Generally typically indicates the court’s interest in hearing a case.

The issue arises from a case from the U.S. Court of Appeals for the Sixth Circuit. In Strang v. Ford Motor Company, 693 F. App’x 400, 405 (6th Cir. 2017), a widow sought nearly $500,000 in extra benefits from Ford’s pension plan. She filed both a claim for benefits and a claim for breach of fiduciary duty seeking the same recovery. The Sixth Circuit affirmed the district court’s dismissal of the breach of fiduciary duty claim even though the court also affirmed the denial of her benefits claim. In so doing, the Sixth Circuit reaffirmed its holding that a plaintiff can pursue a breach of fiduciary duty claim “only where the breach of fiduciary duty claim is based on an injury separate and distinct from the denial of benefits or where the remedy afforded by Congress under [§ 1132(a)(1)(B)] is otherwise shown to be inadequate.” Strang, 693 F. App’x at 405 quoting Rochow v. Life Insurance Co., 780 F.3d 364, 372 (6th Cir. 2015) (en banc).

Strang claims the Supreme Court should resolve the circuit split on the issue. Just days before the Sixth Circuit decision, the Eighth Circuit re-examined and affirmed its earlier analysis of the simultaneous pleading, holding that a plaintiff can simultaneously bring a claim for benefits and breach of fiduciary duty when the “two counts seek functionally identical relief” so long as the claims “allege distinct theories of liability.” Jones v. Aetna Life Ins. Co., 856 F.3d 541, 547 (8th Cir. 2017) citing Silva v. Metropolitan Life Insurance Co., 762 F.3d 711 (8th Circ. 2014). Strang argues that the Second and Ninth Circuit also follow this approach. Ford, however, characterizes the split as illusory, claiming that all the circuits allow plaintiffs to bring both claims when they are alternative rather than duplicative theories.

The Supreme Court is likely to defer to the government’s opinion as to whether to hear the case, such as it did two years ago when denying review of an ERISA forum-selection clause case.

In Executive Order 13813, President Donald Trump made it the official policy of the executive branch to find ways to expand the use of Association Health Plans (AHPs) as a means of providing quality, affordable coverage across state lines.

On January 4, 2018, the U.S. Department of Labor issued a proposed rule designed to do just that. Based on 2015 figures, the proposed rule has the potential to impact the health coverage of about 44 million people, whether by expanding coverage to the uninsured, by making more affordable coverage available to sole proprietors and small employers, or by cutting back some individuals’ benefits.

This blog discusses: (1) existing law and how it limits the formation of AHPs; (2) the changes in the proposed rule; and (3) the potential benefits and drawbacks of the administration’s approach to AHPs.

1. AHPs Under Existing Law

Under the Employee Retirement Income Security Act of 1974 (ERISA), “employee welfare benefit plans” that provide medical benefits — generally known as “group health plans” — can be established by both employers and employee organizations.

The term “employer” includes, however, “a group or association of employers acting for an employer.” Under current law, only a “bona fide” employer association can act as an employer and establish a group health plan. A bona fide employer association must consist of individual member employers who:

• Join together for reasons other than providing health coverage;
• Have one or more common law employees (besides a sole owner and his or her spouse or a partner in a partnership and his or her spouse);
• Control the association; and
• Share a “commonality of interest,” which generally means the member employers and the association share a sufficiently close economic or representational interest, such as operating in the same industry.

These requirements suffer from several limitations, mainly: they prevent employers from joining together for the purpose of providing health coverage and instead require employers to first come up with another reason justifying their existence; they bar sole proprietors and partnerships with no common law employees from joining; and they prevent employers from joining together if they are not closely related, even if they are in the same geographic area.

Bona fide employer associations have a distinct advantage compared to non-bona fide associations when it comes to providing group health coverage. Specifically, under the Patient Protection and Affordable Care Act (more commonly known as the ACA or Obamacare), plans in the individual and small group markets (50 or fewer employees) must provide the following “essential health benefits”:

• Ambulatory patient services
• Emergency services
• Hospitalization
• Maternity and newborn care
• Mental health and substance use disorder services, including behavioral health treatment
• Prescription drugs
• Rehabilitative and habilitative services and devices
• Laboratory services
• Preventive and wellness services and chronic disease management
• Pediatric services, including oral and vision care

In contrast, plans in the large group market (51 or more employees) are not required to provide essential health benefits (although they may of course choose to do so). Instead, they are only required to provide “minimum value,” which means: (1) the plan covers at least 60 percent of the cost of covered benefits; and (2) the plan provides substantial coverage for inpatient hospitalizations and physician services. Large group plans are also exempt from other market reforms under the ACA, such as the rules that bar insurers from rating premiums based on anything other than location, age, family size, and tobacco use.

A group health plan established or maintained by a bona fide employer association is considered a single plan, and assuming there at least 51 employees in the aggregate among all member employers, the plan will fall into the large group market, and thus the plan will not be required to provide essential health benefits.

In contrast, if it is not a bona fide employer association, then each member employer is considered to have established its own, individual plan, and every sole proprietor and small employer that joins is still providing coverage in the individual and small group markets, and consequently must still provide essential health benefits.

An AHP is also a “multiple employer welfare arrangement” (MEWA) under ERISA. A MEWA is a group of two or more unrelated employers that join together to offer or provide welfare benefits (such as medical benefits), whether through a group health plan (sponsored by a bona fide employer association or employee organization) or through some other arrangement. MEWAs have their own reporting and disclosure requirements under ERISA (primarily Form M-1) in addition to those applicable to every group health plan.

There is a long history of financial mismanagement, fraud and abuse of MEWAs, which has sometimes led to insolvency and left participants and health care providers with unpaid claims. To combat this, Congress gave states greater freedom to prevent MEWA abuse. Specifically, under ERISA’s preemption rules: (1) if a MEWA — including an AHP — is fully insured, state insurance regulations can require the MEWA to maintain specified levels of reserves and/or contributions; and (2) if a MEWA is self-funded, in whole or in part, any state insurance regulation may apply to the MEWA so long as it is not inconsistent with ERISA.

This has the benefit of allowing states to protect employers from MEWA fraud, but it has the drawback of making MEWAs subject to sometimes complex legal requirements in each state in which they operate.

2. Proposed Changes to AHPs.

The main purpose of the Department of Labor’s proposed rule — to be codified at 29 C.F.R. Section 2510.3-5 — is to allow more employer associations to qualify as bona fide employer associations. This, in turn, will allow more AHPs to operate as single group health plans in the large group market, which do not have to provide essential benefits and may be rated on different criteria.

In a nutshell, the proposed rule would loosen existing requirements but maintain certain protections designed to prevent adverse consequences and ensure AHPs resemble employer-sponsored arrangements and not commercial insurance.

First, AHPs will be able to form for the exclusive purpose of sponsoring a group health plan. No more do they have to have some other reason justifying their existence.

Second, sole proprietors and other joint owners of businesses with no common law employees (such as partners in a partnership) will now be able to participate, provided any such “working owner”:

• Has an ownership interest in the business;
• Earns wages or self-employment income for personal services provided to the business;
• Is not eligible to participate in a subsidized group health plan maintained by any other employer of the working owner or his or her spouse;
• Either: (1) works at least 30 hours per week or 120 hours per month providing personal services to the business; or (2) has earned income from the business that at least equals the cost of covering the owner and any of his or her dependents on the group health plan.

In addition, the association is allowed to accept a working owner’s written representations that it meets the above criteria, so long as the association does not know differently.

Third, member employers can establish a commonality of interest if they:

• Are in the same trade, industry, line of business, or profession, regardless of state boundaries; or
• Have principal places of business within the same state or the same metropolitan area (even if the metropolitan area includes more than one state).

Expanding the criteria to include geographical regions in addition to industries will significantly enlarge the field of eligible employers.

Fourth, to combat adverse selection and ensure there remains a close connection between the AHP and the employer relationship, bona fide employer associations must comply with certain nondiscrimination requirements set forth in 29 C.F.R. Section 2590.702. These include the following:

• Employer membership must not be conditioned on any health factor of any employee, former employee, or family member or beneficiary who may be covered by the AHP;
• Eligibility rules under the AHP may not discriminate within a group of similarly situated individuals based on any health factor; and
• Required premiums and contributions may not discriminate within a group of similarly situated individuals based on any health factor.

For these purposes, member employers may not be treated as distinct groups of similarly situated individuals. Thus, for example, if Employer A has a sick employee with high health care costs, Employer A cannot be excluded from the association, be subject to stricter eligibility rules, or be charged higher premiums, unless Employer A happens to fall into a bona fide employment-based classification subject to those different requirements (e.g., if Employer A is in Region X, and all member employers in Region X are subject to higher premiums). Even then, if the classification is a pretense and is actually directed at individual participants or beneficiaries, it will not be permitted.

Finally, several additional requirements will apply:

• Health coverage can only be made available to employees, former employees, and their family members or beneficiaries;
• The association cannot be an insurance company, insurance service, or insurance organization licensed by a state to issue insurance and subject to state insurance regulations;
• The employer organization must have a formal organizational structure, such as having a governing body and by-laws (this is not a significant change); and
• The member employers must control the association, whether directly or through the election of officers (also not a significant change).

3. Potential Benefits and Drawbacks.

The Department of Labor acknowledges that the overall effect of the proposed rule is not yet known. However, some potential benefits and drawbacks were identified.

Potential benefits include:

• Lower health care costs for sole proprietors and small employers, whether through (1) having a larger risk pool that is more attractive to insurers or leads to more stable self-funded coverage, (2) greater negotiating power with insurance companies (for insured AHPs) and/or health care providers (for self-funded AHPs), and/or (3) reduced administrative costs through economies of scale.
• Greater freedom of choice for AHPs to customize their benefits packages and reduce costs by offering less comprehensive coverage (in particular, by excluding certain essential health benefits that would otherwise have to be covered in the individual and small group markets).

Potential drawbacks include:

• The expansion of AHPs may lead to adverse selection, in which employers with comparatively younger and healthier employees are drawn to AHPs with less favorable coverage and cheaper premiums, while older and sicker individuals remain in the individual and group markets. This may contribute to rising costs in the individual and small group markets.
• The rules allowing state regulation of MEWAs remain intact, and having to comply with the insurance regulations of a single or multiple states — which may be very different and even inconsistent with each other — may discourage the formation of AHPs, limit their geographic scope, and/or make their administration significantly more burdensome. In addition, AHPs may be required to provide some benefits pursuant to state law, which may limit the ability of AHPs to provide less comprehensive coverage.
• The prohibition on treating different employers as distinct groups of similarly situated individuals may discourage the formation of AHPs, as member employers may not want to subsidize the coverage of other members with high health care costs.
• Even with certain protections in place, AHPs, like other MEWAs, may continue to disproportionately experience financial mismanagement, fraud and abuse.
• The Department of Labor estimates the proposed rule will add to the federal deficit, primarily by reducing tax revenues when employers take advantage of tax deductions by providing health coverage.

Sole proprietors, small employers, trade associations and regional associations interested in exploring AHPs should take a close look at the proposed rule and provide comments by March 6, 2018.

The U.S. Supreme Court recently declined to address the issue of whether forum selection clauses are valid and enforceable in plans governed by the Employee Retirement Income Security Act of 1974 (ERISA). Three U.S. Courts of Appeals have allowed enforcement of plans’ forum selection clauses.

On January 16, 2018, the Supreme Court denied a petition for writ of certiorari filed by a participant in Caterpillar Inc.’s health plan. The participant had originally filed suit in Pennsylvania. Caterpillar successfully moved the case to the Central District of Illinois pursuant to the plan’s forum selection clause. After the participant’s motion for retransfer was denied, the U.S. Court of Appeals for the Seventh Circuit denied mandamus, holding forum selection clauses are enforceable in ERISA plans. In re Mathias, 867 F.3d 727, 734 (7th Cir. 2017), cert. denied sub nom. MATHIAS, GEORGE W. V. USDC CD IL, ET AL., No. 17-740, 2018 WL 411019 (U.S. Jan. 16, 2018). The Seventh Circuit adopted much of the reasoning of the Sixth Circuit, the first appellate court to address the issue. See Smith v. Aegon Companies Pension Plan, 769 F.3d 922, 932 (6th Cir. 2014). See more on the Seventh Circuit’s opinion here.

This is the third time in as many years that the high court has denied review of this issue. In the Smith case, the court sought the views of the Solicitor General, generally a sign of the court’s interest in a topic. The Solicitor General sided with the Department of Labor, which has filed amicus briefs in support of the participants in each of the appellate cases. However, the Solicitor General recommended that the issue percolate more in the appellate courts. Since then, the Eighth and Seventh Circuits have issued orders that align with the Sixth Circuit. And the Supreme Court has denied review of each of the decisions.

The majority of district courts also have found that forum selection clauses are consistent with ERISA’s venue statute, promote uniformity, and reduce litigation costs. But a few outlier district courts held that the forum selection clauses violate the policy behind ERISA’s venue provision, and the Sixth and Seventh Circuit opinions each had a dissent. Without a split among the circuit courts, however, it seems unlikely that the Supreme Court will weigh in on the issue.

Effective Jan. 2, 2018, the Internal Revenue Service (IRS) simplified the fee structure for its Voluntary Compliance Program. Fees will now be based on the total amount of net plan assets rather than the number of plan participants.

If a retirement plan does not follow the rules to maintain its tax-qualified status, the IRS offers a program for correcting the failure without facing plan disqualification called the Voluntary Compliance Program. The fee for a Voluntary Compliance Program application previously was based on the number of plan participants and ranged from $500 to $15,000. The IRS also offered reduced fees for some common mistakes, such as plan loan failures.

The new fee structure is based instead on plan assets and is capped at $3,500. For most plans, this will result in a reduced fee. However, the alternative and reduced fee structures for certain failures no longer apply. The tables below compare the two fee structures.

Prior to January 2, 2018

Effective January 2, 2018

In most cases, a plan sponsor will determine the amount of the plan’s net assets from its most recently filed Form 5500.

The new fee schedule does not apply to Group Voluntary Compliance Program submissions or submissions for orphan plans or 457(b) plans. The new fee structure will not apply to submissions made prior to Jan. 2, 2018. And the IRS will not issue refunds for submissions made before Jan. 2, 2018, that are withdrawn and resubmitted under the new fee schedule.

Section 11081 of the Tax Cuts and Jobs Act — the new tax reform law passed by Congress in late 2017 — repeals the so-called “individual mandate” under the Patient Protection and Affordable Care Act (also known as the ACA, or more informally as Obamacare).

The individual mandate is set forth in Section 5000A of the Tax Code. It requires individuals to maintain minimum essential health coverage every month or else pay a tax penalty, also known as a “shared responsibility payment.” 

Importantly, the tax penalty still applies in 2018, as the repeal does not go into effect until 2019. In 2017, the amount of the penalty was $272 per month for an individual ($3,264 per year) and $1,360 per month for a family of five or more ($16,320 per year). The 2018 amounts are not yet known but are sure to rise.

Also, the employer mandate set forth in Section 4980H of the Tax Code — the requirement that applicable large employers offer coverage to full-time employees or pay a tax penalty — has not been repealed. Consequently, large employers must still make qualifying offers of coverage and navigate a challenging reporting process.

For the 2017 tax year, the IRS has made it even more difficult for large employers to avoid penalties under the Patient Protection and Affordable Care Act (ACA), and major questions remain about how employers can avoid penalties due to missing or incorrect Social Security numbers.

The ACA imposes large penalties on applicable large employers who fail to timely file Forms 1094 or 1095 with the federal government, or who fail to timely furnish Form 1095 to an employee. These forms document that the employer offered and, if applicable, provided health coverage under the ACA to the employee in 2017. The penalty is currently $250 per form, subject to a maximum of $3 million, although there are circumstances in which the penalty can be reduced or, in the case of intentional conduct, increased.

The penalties under Sections 6721 and 6722 of the Tax Code are generally mandatory unless due to reasonable cause under Section 6724. Moreover, the penalty applies not only to unfiled information returns, but also to any form containing missing or incorrect information. Forms with incorrect names, birthdates, or Social Security numbers can be costly.

In previous years, the IRS allowed forms to be filed beyond the normal deadline without penalty. Not anymore. In the past, the IRS has also refused to assert a penalty against an employer who furnished missing or inaccurate information — including Social Security numbers — provided the employer made a “good faith” effort to comply with the rules. Again, not anymore. As of yet, the IRS has not established any good-faith exception applicable to the 2017 tax year.

Finally, the IRS has established a process by which employers can solicit tax identification numbers (TINs), such as Social Security numbers, and not be liable if the TIN is missing or inaccurate. Unfortunately, this safe harbor remains somewhat confusing.

Specifically, the safe harbor requires an employer to solicit the TINs of the employee and his or her dependents initially, and at certain prescribed times thereafter. A solicitation can be made in writing (by mail or electronically) or over the telephone. A written solicitation must be made on a Form W-9 or on a document that that is “substantially similar” to Form W-9.

The problem is, a Form W-9 generally requires the employee to certify, under penalty of perjury, that certain things are true, including:

• That the individual is subject to backup withholding. This is not related to ACA reporting.
• That the Foreign Account Tax Compliance Act (FACTA) code indicating that the individual is exempt from FACTA reporting is correct. Again, this is not relevant to ACA reporting and will be inapplicable.
• That the individual is a U.S. citizen or a “resident alien,” which generally refers to a permanent resident with a green card, or another individual with a substantial physical presence in the United States. Some full-time employees receiving offers of coverage under the ACA (such as non-resident aliens) will not fall into either category and will be unable to sign the certification.

Form W-9 and its instructions also refer to a “payee” and “payments” throughout, which is misleading with respect to ACA reporting for health coverage. Unfortunately, the IRS has not provided any guidance that addresses these issues. Nonetheless, if a large employer does not solicit on the W-9, any missing or incorrect TIN will be subject to penalties.

Given the hard deadline and applicable penalties, large employers should be diligent in completing Forms 1094 and 1095 for the 2017 tax year.

UPDATE (Jan. 3, 2018): The IRS has finally issued relief with respect to Forms 1094 and 1095 for the 2017 tax year. Specifically, in IRS Notice 2018-06, the IRS extended the deadline for furnishing Form 1095 to individuals from January 31, 2018 to March 2, 2018. However, the IRS did not extend the deadline to file Form 1094 with the IRS (which remains February 28, 2018 or, if filing electronically, April 2, 2018), although other extensions could apply in some circumstances. Finally, the IRS will continue to provide relief from penalties for entities that make a “good-faith effort” to comply with the reporting rules but nonetheless include missing and inaccurate information (including SSNs), provided the forms were timely filed.