I can only speak to the language in the adopting release that specifically states that the adviser is obligated to take sufficient steps to ensure that account statements were sent to clients – the SEC is taking the stance that accessing account statements through the custodian’s website merely confirms they are available, not that they have been sent to the clients:

We are not prescribing a single method for forming this belief, as was suggested by one commenter,20 but rather are providing advisers with flexibility to determine how best to meet this requirement. For instance, an adviser could form a reasonable belief after “due inquiry” if the qualified custodian provides the adviser with a copy of the account statement that was delivered to the client.21

Footnote 21 - This practice is followed by many advisers today. Commenters suggested that we permit advisers to satisfy the requirement of forming a reasonable belief after “due inquiry” by accessing qualified custodian account statements through the custodian’s website. See comment letter from Curian Capital LLC, Financial Wealth Management, Inc, LPL Financial Corporation, and SEI Investments Company (July 28, 2009)(“Curian Letter”). We believe that accessing account statements through the website merely confirms that they are available. If an adviser does not take additional steps to determine whether account statements were sent to clients, or that clients obtained statements through the website, the adviser would have an inadequate basis for forming a reasonable belief, after due inquiry, that the qualified custodian sends account statements to clients.  

I don’t think there is only one way to come to this conclusion in a case such as Schwab.  However, I am inclined to think the adviser needs to confirm with Schwab that the statements were actually “sent” to the clients if the only way for the adviser to obtain the statements is to go to the website.  However, it seems that merely accessing the statements on the website will not be sufficient, by itself.   It would seem that Schwab and others like them will need to come up with a way to enable the advisers whose clients are custodied with them (e.g., Schwab) to comply with the new requirement.   I would suggest it prudent to discuss this matter with outside counsel and get an opinion for your records as to what will be sufficient to satisfy the requirement.

I think there is also an expectation, or at least a hope, that the SEC will put an a FAQ as they did after the 2004 amendments – with luck, this particular issue will be addressed.  Stay tuned!