DYNEGY NORTHEAST GENERATION, INC. COMPREHENSIVE WELFARE BENEFITS PLAN Effective as of January 1, 2002

Employee Benefits Plan Agreement

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Title: DYNEGY NORTHEAST GENERATION, INC. COMPREHENSIVE WELFARE BENEFITS PLAN Effective as of January 1, 2002
Governing Law: Texas Date: 2/26/2009

Exhibit 10.77

DYNEGY NORTHEAST GENERATION, INC.

COMPREHENSIVE WELFARE BENEFITS PLAN

Effective as of January 1, 2002

Dynegy Northeast Generation, Inc.
Comprehensive Welfare Benefits Plan

WHEREAS, Dynegy Northeast Generation, Inc. (the “Company”) has established the welfare benefit plans identified as the prior plans on Appendix A hereto (the “Prior Plans”) for the benefit of their eligible employees; and

WHEREAS, the Company desires to consolidate the Prior Plans into a single comprehensive welfare benefit plan in the form of this Dynegy Northeast Generation, Inc. Comprehensive Welfare Benefits Plan (the “Plan”) intending thereby to provide an uninterrupted and continuing program of benefits;

NOW, THEREFORE, the Prior Plans are merged into and consolidated with the Plan such that each such Prior Plan transfers to the Plan its benefit liability obligations and assets effective as of January 1, 2002 and the Plan accepts and assumes such benefit liability obligations and assets effective as of January 1, 2002 and each such Prior Plan becomes a part of and a “Constituent Benefit Program” under, the Plan forming a single comprehensive welfare benefit plan as follows, effective as of January 1, 2002:

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Table of Contents

I. DEFINITIONS AND CONSTRUCTION			1

1.1 Definitions			1
1.2 Number and Gender			3
1.3 Headings			3
1.4 Reference to Plan Includes Constituent Benefit Programs			3
1.5 Inconsistent Provisions in Constituent Benefit Program Documents			3
1.6 Effect Upon Other Plans			3

II. ESTABLISHMENT AND PURPOSE OF THE PLAN			4

2.1 Establishment and Purpose of the Plan			4
2.2 Intention to be Welfare Benefit Plan			4
23 Incorporation of Constituent Benefit Programs			4

III. PARTICIPATION AND DEPENDENT COVERAGE			5

3.1 Eligible Employee Coverage			5
3.2 Eligible Dependent Coverage			5
3.3 Enrollment Without Regard to Medicaid Eligibility			6
3.4 Special Enrollment Periods			6

IV. THIRD PARTY LIABILITY			7

4.1 Effect of Article			7
4.2 Third Party Liability isPrimary asto Covered Expenses			7
4.3 Plan’s Rights of Reimbursement For Covered Expenses Previously Paid			7
4.4 Plan’s Exclusion of Coverage For Future Covered Expenses			7
4.5 Plan’s Rights of Independent Legal Action			7
4.6 Attorney Fees, Costs and Expenses			8
4.7 Obligations of Participants			8
4.8 Limitations on Plan’s Rights of Reimbursement			8

V. BENEFIT CLAIMS PROCEDURE			9

5.1 Claims For Benefits			9
5.2 Definitions			9
5.3 Filing of Benefit Claim			10
5.4 Processing of Benefit Claim			11
5.5 Notification of Adverse Benefit Determination			12
5.6 Timing of Adverse Benefit Determination Notification Regarding Health Benefit Claims			12
5.7 Timing of Adverse Benefit Determination Notification Regarding Disability Benefit Claims			14
5.8 Timing of Adverse Benefit Determination Regarding Non-Health And Disability Claims			14
5.9 Review of Adverse Benefit Determination Regarding Health or Disability Benefit Claims			15
5.10 Review of Adverse Benefit Determination Regarding Non-Health and Disability Benefit Claims			16
5.11 Notification of Benefit Determination on Review			16

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5.12 Timing of Notification Regarding Review of Health Benefit Claims			17
5.13 Timing of Notification Regarding Review of Disability Benefit Claims			18
5.14 Timing of Notification Regarding Review of Non-Health or Disability Claims			18
5.15 Exhaustion of Administrative Remedies			18
5.16 Payment of Benefits			18
5.17 Authorized Representatives			19

VI. FUNDING OF PLAN			20

6.1 Source of Benefits			20
6.2 Participant Contributions			20
6.3 HMO Premiums			20
6.4 Insurance Premiums			20
6.5 Trust			20

VII. ADMINISTRATION OF PLAN			21

7.1 Plan Administrator			21
7.2 Discretion to Interpret Plan			21
7.3 Powers and Duties			21
7.4 Expenses			22
7.5 Right to Delegate			22
7.6 Reliance on Reports, Certificates, and Participant Information			23
7.7 Indemnification			23
7.8 Fiduciary Duty			23
7.9 Compensation and Bond			23

VIII. AMENDMENT AND TERMINATION OF PLAN			24

8.1 Right to Amend			24
8.2 Right to Terminate			24
8.3 Effect of Amendment Or Termination			24
8.4 Delegation to Benefit Plans Committee			24
8.5 Effect of Oral Statements			24

IX. MISCELLANEOUS PROVISIONS			25

9.1 No Guarantee of Employment			25
9.2 Payments to Minors and Incompetents			25
9.3 No Vested Right to Benefits			25
9.4 Nonalienation of Benefits			25
9.5 Unknown Whereabouts			26
9.6 Participating Employers			26
9.7 Notice and Filing			26
9.8 Incorrect Information, Fraud, Concealment, or Error			27
9.9 Medical Responsibilities			27
9.10 Compromise of Claims			27
9.11 Electronic Administration			27
9.12 Tax Payments			27
9.13 Compensation and Bond			28
9.14 Jurisdiction			28
9.15 Severability			28

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X. QUALIFIED MEDICAL CHILD SUPPORT ORDERS			29

XI. COBRA CONTINUATION COVERAGE			30

XII. FMLA COVERAGE			31

XIII. USERRA			32

XIV. RESTRICTIONS REGARDING PROTECTED HEALTH INFORMATION			33

14.1 Purpose of Article			33
14.2 Provision of Information to the Company Pursuant to Authorization			33
14.3 Provision of Summary Health Information to Company			33
14.4 General Provision of Health Information to Company			33
14.5 Adequate Separation			35
14.6 Privacy Officer			36
14.7 Coverage and Effective Date			38

APPENDIX A			A-1

APPENDIX B			B-1

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I.
Definitions and Construction

1.1 Definitions . Where the following words and phrases appear in the Plan, they shall have the respective meanings set forth below, unless the context clearly indicates to the contrary:

(1)		Administrative Services Agreement : The agreement(s) entered into with each individual or entity providing administrative services with respect to one or more Constituent Benefit Programs.

(2)		Administrative Services Provider : Any individual or entity operating under an Administrative Services Agreement to provide administrative services with respect to any benefits offered under one or more of the Constituent Benefit Programs.

(3)		Board : The board of directors of the Company.

(4)		Cafeteria Plan : The cafeteria plan, if any, established by the Employer under section 125 of the Code.

(5)		Code : The Internal Revenue Code of 1986, as amended.

(6)		Benefit Plans Committee : The Committee to which the Board has delegated certain Plan sponsor powers.

(7)		Company : Dynegy Northeast Generation, Inc.

(8)		Compensation : Unless otherwise specifically provided in a Constituent Benefit Program, the annual base pay paid by the Employer to or for the benefit of a Participant for services performed for the Employer.

(9)		Condition : Any sickness, injury, or other mental or physical disability giving rise to the payment of benefits under the Plan.

(10)		Constituent Benefit Programs : The benefit programs listed on Appendix B to the Plan, as such programs and such Appendix B may be amended from time to time.

(11)		Constituent Benefit Program Document(s) : The written document(s) setting forth the terms of the applicable Constituent Benefit Program, including, but not limited to, the benefits provided, the eligibility and enrollment requirements, the conditions of dependent coverage, if applicable, the termination of coverage, and the terms and conditions of benefit payments under each Constituent Benefit Program, as may be amended from time to time. Appendix B describes the Constituent Benefit Program Document or Constituent Benefit Program Documents for each Constituent Benefit Program. Appendix B also describes which Employers maintain which Constituent Benefit Programs for their Eligible Employees.

(12)		Covered Eligible Dependent : Each Eligible Dependent who is covered under the Plan pursuant to Section 3.2.

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(13)		Effective Date : January l, 2002, except as otherwise stated herein and except that provisions of the Plan required to have an earlier effective date by applicable statute and/or regulation shall be effective as of the required effective date in such statute and/or regulation.

(14)		Eligible Dependent : With respect to an Eligible Employee, each person who by virtue of a relationship to such Eligible Employee is eligible for coverage under a Constituent Benefit Program.

(15)		Eligible Employee : Each individual who is eligible for coverage under a Constituent Benefit Program because of current or former employment with the Employer. Notwithstanding any provision of the Plan to the contrary, no individual who is designated, compensated, or otherwise classified or treated by the Employer as an independent contractor, leased employee, or other non-common law employee shall be an Eligible Employee, unless a Constituent Benefit Program specifically and expressly provides otherwise.

(16)		Employer : The Company and each Participating Employer.

(17)		ERISA : The Employee Retirement Income Security Act of 1974, as amended.

(18)		Group Health Plan : Each Constituent Benefit Program, which is a group health plan within the meaning of section 5000(b)(l) of the Code, and/or a group health plan within the meaning of section 607(1) of ERISA, as applicable, and for purposes of Article XII, is either a group health plan within the meaning of section 5000(b)(l) of the Code or any Constituent Benefit Program designated by the Employer as a “Group Health Plan” for purposes of FMLA Leave.

(19)		HMO : Any health maintenance organization or similar organization or network of individuals or organizations that has contracted to provide medical, dental, and/or other health-related benefits to Participants and Covered Eligible Dependents.

(20)		Insured Constituent Benefit Program : Each Constituent Benefit Program whose benefits are provided by an Insurer.

(21)		Insurer : Any insurance company that has contracted to provide benefits under a Constituent Benefit Program.

(22)		Participant : Each Eligible Employee who is a participant in the Plan pursuant to Article III and, where reference is appropriate, each Covered Eligible Dependent.

(23)		Participating Employer : Any subsidiary or affiliate of the Company, or any other entity permitted by law to do so, that has been designated by the Company as a participating employer and participates in the Plan with respect to one or more Constituent Benefit Programs.

(24)		Plan : The Dynegy Northeast Generation, Inc. Comprehensive Welfare Benefits Plan.

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(25)		Plan Administrator : An individual, committee or entity appointed by the Board to perform, in a fiduciary capacity as administrative fiduciary, certain identified duties and responsibilities with respect to the administration of the Plan and/or a Constituent Benefit Program.

(26)		Plan Year : The twelve-consecutive month period commencing on January 1 of each year.

(27)		Recovery : An amount obtained by or for the benefit of a Participant or Covered Eligible Dependent from a Third Party, such Third Party’s liability carrier, or in the case of uninsured or underinsured motorist coverage, from such Participant’s or Covered Eligible Dependent’s automobile insurance carrier because of a Condition for which a Third Party is legally liable. In the case of a Recovery which, in whole or in part, includes assets other than cash or cash equivalents, the Plan Administrator shall determine the monetary value thereof.

(28)		Third Party : Any individual or entity who or which is or may be liable to a Participant or Covered Eligible Dependent for a Condition or for payment of damages or expenses related to a Condition.

1.2 Number and Gender . Wherever appropriate herein, words used in the singular shall be considered to include the plural and words used in the plural shall be considered to include the singular. The masculine gender, where appearing in the Plan, shall be deemed to include the feminine gender.

1.3 Headings . The headings of Articles and Sections herein are included solely for convenience. If there is any conflict between such headings and the text of the Plan, the text shall control. All references to Sections, Articles, Paragraphs, and Clauses are to this document unless otherwise indicated.

1.4 Reference to Plan Includes Constituent Benefit Programs . Any reference herein to the Plan includes each Constituent Benefit Program unless otherwise indicated, irrespective of the fact that certain references herein specifically are to the Constituent Benefit Programs.

1.5 Inconsistent Provisions in Constituent Benefit Program Documents . In the event that any term, provision, implication, or statement in a Constituent Benefit Program Document conflicts with, contradicts, or renders ambiguous a term, provision, implication, or statement in this document, such term, provision, implication, or statement in this document shall control.

1.6 Effect Upon Other Plans . Except to the extent provided herein, nothing in the Plan shall be construed to affect the provisions of any other plan maintained by the Employer.

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II.
Establishment and Purpose of the Plan

2.1 Establishment and Purpose of the Plan . The Company has adopted and established the Plan for the purpose of providing the benefits under and coordinating the administration of the Constituent Benefit Programs, which provide certain health, accident, life, disability, and other welfare benefits for the Eligible Employees of the Employer.

2.2 Intention to be Welfare Benefit Plan . The Plan is intended to be a program of benefits constituting an employee welfare benefit plan within the meaning of section 3(1) of ERISA and the regulations promulgated thereunder to the extent the benefits provided by each individual Constituent Benefit Program so permit. If any benefits provided under a Constituent Benefit Program are determined to be other than benefits that are eligible to constitute an employee welfare benefit plan within the meaning of section 3(1) of ERISA, such determination shall not prevent the remainder of the Plan from qualifying as an employee welfare benefit plan within the meaning of such section.

2.3 Incorporation of Constituent Benefit Programs . The Constituent Benefit Programs and the Constituent Benefit Program Documents in their entirety, as each may be amended from time to time, are incorporated by reference herein and made a part of the Plan. No Constituent Benefit Program is intended to be, nor will any be interpreted to be, a separate employee benefit plan, except that for the purpose of determining whether the Plan or any Constituent Benefit Program is a “group health plan” subject to or exempt from any law made applicable to “group health plans,” each Constituent Benefit Program will be considered to be a separate plan or “group health plan,” and the fact that one Constituent Benefit Program will be subject to or exempt from such law will not cause any other Constituent Benefit Program to be so subject to or exempt from such law.

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III.
Participation and Dependent Coverage

3.1 Eligible Employee Coverage .

(a) Each Eligible Employee shall become a Participant in the Plan coincident with the date such Eligible Employee becomes enrolled in and covered under one or more of the Constituent Benefit Programs.

(b) The rules pertaining to eligibility for, enrollment and reenrollment in, coverage under and amendment of coverage under, and termination of coverage of Eligible Employees in a Constituent Benefit Program vary for each Constituent Benefit Program and are set forth in the respective Constituent Benefit Program Document. Enrollment and coverage of an Eligible Employee in a Constituent Benefit Program shall be subject to any required premium payment applicable to such coverage and any and all other terms and conditions set forth in the applicable Constituent Benefit Program Document.

(c) Except as otherwise specifically provided by the Plan, an Eligible Employee shall cease to be a Participant in the Plan upon the day following the earliest to occur of the date he is no longer enrolled in and covered under at least one Constituent Benefit Program or the effective date of termination of the Plan. If an Eligible Employee ceases to be a Participant in the Plan, he shall be entitled to recommence such participation in accordance with Paragraphs (a) and (b) of this Section 3.1 provided that the Plan has not terminated.

3.2 Eligible Dependent Coverage .

(a) Each Eligible Dependent shall become a Covered Eligible Dependent under the Plan coincident with the date such Eligible Dependent becomes enrolled in and covered under at least one Constituent Benefit Program.

(b) The rules pertaining to eligibility for, enrollment and reenrollment in, coverage under and amendment of coverage under, and termination of coverage of Eligible Dependents in a Constituent Benefit Program vary for each Constituent Benefit Program and are set forth in the respective Constituent Benefit Program Document. Enrollment and coverage of an Eligible Dependent in a Constituent Benefit Program shall be subject to any required premium payment applicable to such coverage and any and all other terms and conditions set forth in the applicable Constituent Benefit Program Document.

(c) Coverage of a Covered Eligible Dependent of a Participant shall terminate upon the day following the earliest to occur of the date such Participant ceases to be enrolled in and covered under at least one Constituent Benefit Program or the effective date of the termination of the Plan. If coverage of a Covered Eligible Dependent under the Plan terminates, such Eligible Dependent shall be entitled again to be covered under the Plan in accordance with Paragraphs (a) and (b) of this Section 3.5 provided that the Plan has not terminated.

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3.3 Enrollment Without Regard To Medicaid Eligibility . Contrary Plan provisions notwithstanding, each Group Health Plan shall enroll an individual in the Plan without regard to the fact that such individual is eligible for, or is provided medical assistance under, a state plan for medical assistance approved under title XIX of the Social Security Act, but only to the extent any such Group Health Plan is subject to such mandate by law.

3.4 Special Enrollment Periods . Contrary Plan provisions notwithstanding, each Group Health Plan shall permit an individual to enroll under the conditions, and during the periods, set forth in section 701(f) of ERISA.

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IV.
Third Party Liability

4.1 Effect of Article . The provisions of this Article IV shall apply only with respect to a Constituent Benefit Program which is a Group Health Plan and shall supercede and replace entirely any and all provisions of such Plan’s Constituent Benefit Program Document which pertain to reimbursement or subrogation rights.

4.2 Third Party Liability Is Primary As to Covered Expenses . The Plan shall not be primarily responsible or liable for the payment of Covered Expenses incurred by a Participant or because of a Condition caused by the fault of a Third Party. Accordingly and in accordance with the provisions of this Article IV, the Plan shall be and is entitled to the benefit of any Recovery or right of Recovery which a Participant may have which relates to a Condition for which a Third Party was, is or may become liable without regard to any characterization between such Third Party and the Participant, a court, a jury or any other person or entity of such liability as being predicated upon pain and suffering, mental anguish, punitive damages, wrongful death or any other basis other than for medical or other welfare benefits and without regard to whether the liability of such Third Party is reduced to a Recovery as a result of legal proceedings, arbitration, compromise settlement or otherwise.

4.3 Plan’s Rights of Reimbursement For Covered Expenses Previously Paid . If the Plan has paid Covered Expenses of a Participant because of a Condition caused by the fault of a Third Party and Recovery is obtained by the Participant with respect to such Condition, the Participant shall be obligated to reimburse the Plan for all such Covered Expenses which were paid by the Plan provided, however, that the Participant shall have no obligation of reimbursement in excess of the total amount of such Recovery.

4.4 Plan’s Exclusion of Coverage For Future Covered Expenses . If a Condition of a Participant is or has been caused by the fault of a Third Party and a Recovery is obtained by the Participant with respect to such Condition, the Plan shall have no obligation to pay and there shall be excluded from future coverage by this Plan any and all Covered Expenses thereafter incurred by such Participant for, in connection with or relating to such Condition until such expenses exceed in the aggregate the total amount of such Recovery remaining after reimbursement of the Plan pursuant to Section 4.3.

4.5 Plan’s Rights of Independent Legal Action . If a Participant has incurred, incurs or may incur Covered Expenses because of a Condition caused or possibly caused by the fault of a Third Party, the Plan shall have the right but not the duty to protect its interests by (1) bringing an action in the name of the Plan or of the Participant against the Third Party, such Third Party’s liability carrier, or in the case of uninsured or under-insured motorist coverage, against such Participant’s automobile insurance carrier or (2) joining or intervening in any action by a Participant against any Third Party, such Third Party’s insurer or in the case of uninsured or underinsured motorist coverage, against such Participant’s automobile insurance carrier. The Plan’s failure to bring an action or to join or intervene in litigation pursuant to its rights under this Section 4.4 shall not affect or impair the Plan’s rights under this Article IV.

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4.6 Attorney Fees, Costs and Expenses . The Plan’s rights of reimbursement, recovery and Covered Expense exclusion pursuant to this Article IV shall not be limited or reduced pro rata or otherwise for attorney’s fees, costs or expenses incurred by a Participant in seeking a Recovery except with the express written consent of the Plan Administrator.

4.7 Obligations of Participants . The Participant shall have an affirmative obligation to cooperate in reimbursing the Plan and in otherwise assuring the Plan’s rights of reimbursement pursuant to this Article IV, shall execute and deliver to the Plan Administrator all assignments and other documents requested by the Plan Administrator for enforcing the Plan’s rights under this Article IV, shall not take any action which might prejudice the Plan’s right under this Article IV, and shall not release any Third Party (even if the release purports to be partial release or release for the excess liability over Plan benefits) without the consent of the Plan Administrator, which consent shall not be unreasonably withheld. The Plan’s rights of reimbursement under this Article IV shall not be affected by a release of any Third Party entered into without the consent of the Plan Administrator. If a Participant initiates a liability claim against any Third Party or such Third Party’s liability carrier or reimbursement is sought from such Participant’s own automobile insurance carrier under the uninsured or underinsuied motorist endorsement, the amounts described in Section 4.3 and amounts to cover all future medical expenses which otherwise would be Covered Expenses relating to the Condition which is the basis of such liability claim must be included in the claim. If a Participant receives a Recovery, the Participant shall hold such money in trust for the Plan to the extent of the Plan’s rights under this Article IV. Each Participant who incurs any Condition shall inform the Plan Administrator whenever it appears that a Third Party is or may be liable to the Participant.

4.8 Limitations on Plan’s Rights of Reimbursement . In the event that a Recovery relating to a Condition is insufficient to cover all medical expenses paid or payable by both the Plan and the Participant, as applicable, for services and supplies incurred in treating such Condition, the amount of the Recovery relating to such Condition which shall be subject to the Plan’s rights of reimbursement pursuant to this Article IV shall be reduced by such medical expenses incurred and paid by the Participant in connection with the treatment of such Condition which were not reimbursed or will not be subject to reimbursement by the Plan as the Plan Administrator may, in its sole discretion and on a case-by-case basis, determine.

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V.
Benefit Claims Procedure

5.1 Claims For Benefits . Claims for benefits or reimbursement under the Plan shall be submitted and processed in accordance with this Article V except that this Article V shall not apply to any Constituent Benefit Program (a) which is not regulated by ERISA or (b) which has in its Constituent Benefit Program Document provisions which address claims procedures and appeals and which the Plan Administrator that has powers and duties of benefits claims administration has determined to be applicable in lieu of the provisions of this Article V. Completion by a Participant or Covered Eligible Dependent of his responsibilities and obligations under the claims procedures applicable with respect to a Constituent Benefit Program shall be a condition precedent to the commencement of any legal or equitable action in connection with a claim for benefits under such program by a Participant or Covered Eligible Dependent, or by any other person or entity claiming rights through such Participant or Covered Eligible Dependent; provided, however, that the Plan Administrator having powers and duties of benefits claims administration in its discretion may waive compliance with such claims procedures as a condition precedent to any such action.

5.2 Definitions . For purposes of this Article V, the following terms, when capitalized, will be defined as follows:

	(1)		Adverse Benefit Determination : Any denial, reduction or termination of or failure to provide or make payment (in whole or in part) for a Plan benefit, including any denial, reduction, termination or failure to provide or make payment that is based on a determination of a Claimant’s eligibility to participate in the Plan, and including with respect to health benefits a denial, reduction, termination or failure to provide or make payment resulting from the application of any utilization review, as well the failure to cover an item or service for which benefits are otherwise provided because it is determined to be experimental, investigational or not medically necessary or appropriate. Further and with respect to health benefits, any reduction or termination of an ongoing course of treatment prior to its scheduled expiration will be treated as an Adverse Benefit Determination regarding a Concurrent Care Claim. Further, any invalidation of a claim for failure to furnish written proof of loss or to comply with the claim submission procedure will be treated as an Adverse Benefit Determination.

	(2)		Benefits Administrator : The person or office to whom the Plan Administrator that has powers and duties of benefit claims administration has delegated day-to-day Plan administration responsibilities and who, pursuant to such delegation, processes Plan benefit claims in the ordinary course or if none has been so designated, the Plan Administrator that has powers and duties of benefits claims administration.

	(3)		Claimant : A Participant or beneficiary or an authorized representative of such Participant or beneficiary who has filed or desires to file a claim for a Plan benefit.

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	(4)		Concurrent Care Claim : Any request to extend an ongoing course of a health benefit treatment beyond the period of time or number of treatments that has previously been approved under the Plan.

	(5)		Health Care Professional : A physician or other health care professional licensed, accredited or certified to perform specified health services consistent with State law.

	(6)		Independent Fiduciary : The person or entity retained by the Plan Administrator to perform the review of an Adverse Benefit Determination, who will be an individual other than (a) the individual who made the Adverse Benefit Determination that is the subject of the review and (b) the subordinate of such individual.

	(7)		Post-Service Claim : Any claim for a Plan health benefit that is not a Pre-Service Claim.

	(8)		Pre-Service Claim : Any claim for a Plan health benefit the terms of which condition receipt thereof, in whole or in part, on approval of the benefit in advance of obtaining medical care.

	(9)		Urgent Care Claim : Any Plan health benefit claim for medical care or treatment with respect to which the application of the time periods otherwise applicable to such claim (a) could seriously jeopardize, as determined either by a physician with knowledge of the Claimant’s medical condition or by the Benefits Administrator (applying the judgment of a prudent layperson who possesses an average knowledge of health and medicine), the Claimant’s life, health or ability to regain maximum function, or (b) would subject the Claimant, in the opinion of a physician with knowledge of the Claimant’s medical condition, to severe pain that cannot be adequately managed without the care or treatment that is the subject of the claim.

5.3 Filing of Benefit Claim . A Claimant must file with the Benefits Administrator a written claim for benefits under the Plan with written proof of loss no later than March 31 of the Plan Year following the Plan Year in which the related expense was incurred on the form provided by, or in any other manner approved by, the Benefits Administrator. For purposes of applying the time periods for benefit determination pursuant to Section 5.6, 5.7 or 5.8 below, filing a claim with the Benefits Administrator will be treated as filing a claim with the Plan Administrator. In connection with the submission of a claim, the Claimant may examine the Plan and any other relevant documents relating to the claim, and may submit written comments relating to such claim to the Benefits Administrator coincident with the filing of the benefit claim form. Failure of a Claimant to furnish written proof of loss or to comply with the claim submission procedures and rules established by the Plan Administrator (including rules as to what information relating to a claim is required to be submitted by a Claimant) will invalidate such claim submission and such invalidation will not be considered as or treated as an Adverse Benefit Determination for purposes of this Article V unless the Benefits Administrator in its discretion determines that it was not reasonably possible to provide such proof or comply with such procedure. Notwithstanding the foregoing, if a Claimant’s communication regarding a Pre-Service Claim is received by the Benefits Administrator and names the Claimant, his specific medical condition or symptom, and the specific treatment, service or product for which approval is requested, but otherwise fails to follow the claims submission procedure, the Benefits Administrator will notify the Claimant of the failure and the proper procedures to be followed to file a claim for benefits. Such notification will be provided as soon as possible, but not later than five days (twenty-four hours in the case of an Urgent Care Claim) following the failure and may be oral unless the Claimant requests written notification.

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5.4 Processing of Benefit Claim . Upon receipt of fully completed benefit claim forms from a Claimant, the Benefits Administrator shall determine if the Claimant’s right to the requested benefit, payable at the time or times and in the form requested, is clear and, if so, shall process such benefit claim without resort to the Plan Administrator. In the case of either an Urgent Care Claim other than a Concurrent Care Claim or a Pre-Service Claim, the Benefits Administrator shall affirmatively notify the Claimant of the approval of the claim not later than seventy-two hours after receipt of the benefit claim in the case of an Urgent Care Claim other than a Concurrent Care Claim and not less then fifteen days after receipt of the benefit claim in the case of a Pre-Service Claim. If the Benefits Administrator determines that the Claimant’s right to the requested benefit, payable at the time or times and in the form requested, is not clear, it shall refer the benefit claim to the Plan Administrator for review and determination, which referral shall include:

	(1)		All materials submitted to the Benefits Administrator by the Claimant in connection with the claim;

	(2)		A written description of why the Benefits Administrator was of the view that the Claimant’s right to the benefit, payable at the time or times and in the form requested, was not clear;

	(3)		A description of all Plan provisions pertaining to the benefit claim;

	(4)		Where appropriate, a summary as to whether such Plan provisions have in the past been consistently applied with respect to other similarly situated Claimants; and

	(5)		Such other information as may be helpful or relevant to the Plan Administrator in its consideration of the claim.

If the Claimant’s claim is referred to the Plan Administrator, the Claimant may examine any relevant document relating to his claim and may submit written comments or other information to the Plan Administrator to supplement his benefit claim. Within the time period described in Section 5.6, 5.7 or 5.8, whichever is applicable to a claim, the Plan Administrator shall consider the referral regarding the claim of the Claimant and make a decision as to whether it is to be approved, modified or denied. If the claim is approved, the Plan Administrator shall direct the Benefits Administrator to process the approved claim as soon as administratively practicable and in the case of either an Urgent Care Claim other than a Concurrent Care Claim or a Pre-Service Claim, the Plan Administrator shall affirmatively notify the Claimant of the approval of the claim not later than seventy-two hours after receipt of the benefit claim in the case of an Urgent Care Claim other than a Concurrent Care Claim and not less then fifteen days after receipt of the benefit claim in the case of a Pre-Service Claim.

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5.5 Notification of Adverse Benefit Determination . In any case of an Adverse Benefit Determination of a claim for a Plan benefit, the Plan Administrator shall furnish written notice to the affected Claimant within the notification periods described in Section 5.6, 5.7 or 5.8, whichever is applicable to such claim below. Any notice that denies a benefit claim of a Claimant in whole or in part shall, in a manner calculated to be understood by the Claimant:

	(1)		State the specific reason or reasons for the Adverse Benefit Determination;

	(2)		Provide specific reference to pertinent Plan provisions on which the Adverse Benefit Determination is based;

	(3)		In the case of a health or disability benefit claim and if an internal rule, guideline, protocol or other similar criterion was relied upon in making the Adverse Benefit Determination, either provide such criterion or state that such criterion was relied upon and that a copy of the criterion will be provided free of charge to the Claimant upon request;

	(4)		In the case of a health or disability benefit claim and if the Adverse Benefit Determination is based on a medical necessity, experimental treatment or similar exclusion or limit, either explain the scientific or clinical judgment for the determination, applying the terms of the Plan to the Claimant’s medical circumstances, or state that such explanation will be provided free of charge to the Claimant upon request;

	(5)		Describe any additional material or information necessary for the Claimant to perfect the claim and explain why such material or information is necessary;

	(6)		Describe the Plan’s review procedures and time limits applicable to such procedures, including a statement of the Claimant’s right to bring a civil action under section 502(a) of ERISA following an Adverse Benefit Determination on review; and

	(7)		If an Urgent Care Claim is involved, provide a description of the expedited review process available for Urgent Care Claims (see Section 5.12).

5.6 Timing of Adverse Benefit Determination Notification Regarding Health Benefit Claims . The Plan Administrator shall provide a Claimant with notice of an Adverse Benefit Determination regarding a health benefit claim within the following time periods:

(1)

In the case of an Urgent Care Claim other than a Concurrent Care Claim, as soon as possible, taking into account the medical exigencies, but not later than seventy-two hours after the claim is filed with the Plan Administrator; provided, however, that if additional information from the Claimant is necessary to complete the claim, the Claimant will be notified within twenty-four hours after such claim is filed with the Plan Administrator and will be given at least forty-eight hours to provide the specified information, and notice of the Plan Administrator’s benefit determination will be provided to the Claimant within forty-eight hours after the earlier of (a) the Plan Administrator’s receipt of the specified information or (b) the end of the period afforded the Claimant to provide the specified information. In addition, such notification may be provided orally (provided that written or electronic notification is provided within three days following such oral notification).

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	(2)		In the case of a properly submitted Urgent Care Claim that is a Concurrent Care Claim, if such claim is made at least 24 hours prior to the scheduled expiration of treatment, notice of the disposition of the claim will be furnished to the Claimant as soon as possible, taking into account the medical exigencies, but not later than 24 hours after such claim is filed with the Plan Administrator. If such claim is not made at least twenty-four hours prior to the scheduled expiration of treatment, the claim shall be governed by Clause (1) above.

	(3)		In the case of a decision to reduce or terminate a previously approved ongoing course of health benefit treatment that was to be provided over a period of time or a number of treatments, the Plan Administrator shall notify the Claimant of the Adverse Benefit Determination at a time sufficiently in advance of the reduction or termination to allow the Claimant to appeal and obtain a determination on review of such Adverse Benefit Determination before the benefit is reduced or terminated.

	(4)		In the case of a Pre-Service Claim not described in Clauses (1) through (3) above, the Plan Administrator shall notify the Claimant of the Adverse Benefit Determination within a reasonable period of time appropriate to the medical circumstances but not later than fifteen days after receipt of the claim by the Plan (which period may be extended one time for up to an additional fifteen days provided that the Plan Administrator both determines that such extension is necessary due to matters beyond the control of the Plan and notifies the Claimant prior to the expiration of the initial fifteen-day period of the circumstances requiring the extension of time and the date by which the Plan expects to render a decision).

	(5)		In the case of a Post-Service Claim not described in Clauses (1) through (3) above, the Plan Administrator shall notify the Claimant of the Adverse Benefit Determination within a reasonable period of time but not later than thirty days after receipt of the claim (which period may be extended one time for up to fifteen days provided that the Plan Administrator both determines that such extension is necessary due to matters beyond the control of the Plan and notifies the Claimant prior to the expiration of the initial thirty-day period of the circumstances requiring the extension of time and the date by which the Plan expects to render a decision).

The period of time within which an Adverse Benefit Determination regarding a health benefit claim shall be made, as described above, shall begin at the time a claim is filed in accordance with the reasonable procedures of the Plan, without regard to whether all the information necessary to make a benefit determination accompanies the filing. In the case of claims described in Clauses (4) or (5) above, in the event an extension of the period of time for an Adverse Benefit Determination is required because additional information is necessary to decide the claim, (including examination by a physician selected by the Plan Administrator or the performance of an autopsy), the notice of extension will specifically describe the required information, the Claimant will be afforded at least forty-five days from receipt of the notice to provide such specified information, and the period for making the Adverse Benefit Determination will be tolled from the date on which the notification of the extension is sent to the Claimant until the date on which the Claimant responds to the request for additional information.

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5.7 Timing of Adverse Benefit Determination Notification Regarding Disability Benefit Claims . The Plan Administrator shall notify the Claimant of the Adverse Benefit Determination regarding a disability benefit claim within a reasonable period of time, but not later than forty-five days after receipt of the claim. This period may be extended by the Plan Administrator for up to thirty days, provided that the Plan Administrator both determines that such extension is necessary due to matters beyond the control of the Plan and notifies the Claimant, prior to expiration of the initial forty-five-day period, of the circumstances requiring the extension of time and the date by which the Plan expects to render a decision. If, prior to the end of the first thirty-day extension period, the Plan Administrator determines that, due to matters beyond the control of the Plan, a decision cannot be rendered within that extension period, the period for making the determination may be extended for up to an additional thirty days, provided that the Plan Administrator notifies the Claimant prior to the expiration of the first thirty-day extension period of the circumstances requiring the extension and the date as of which the Plan expects to render a decision. Any extension notice provided to a Claimant shall specifically explain the standards on which entitlement to the benefit at issue is based, the unresolved issues that prevent a decision on the claim, and the additional information needed to resolve those issues, and the Claimant shall be afforded at least forty-five days in which to provide the specified information. In the event of such an extension, the period for making the Adverse Benefit Determination will be tolled from the date on which the notification of extension is sent to the Claimant until the date on which the Claimant responds to the request for additional information. The period of time within which an Adverse Benefit Determination shall be made, as described above, shall begin at the time a claim is filed in accordance with the reasonable procedures of the Plan, without regard to whether all the information necessary to make a benefit determination accompanies the filing.

5.8 Timing of Adverse Benefit Determination Regarding Non-Health and Disability Claims . In any case of an Adverse Benefit Determination of a claim for a Plan benefit other than a health or disability benefit claim, the Plan Administrator shall furnish written notice to the affected Claimant within a reasonable period of time but not later than ninety days after receipt of such claim for Plan benefits (or within 180 days if special circumstances necessitate an extension of the ninety-day period and the Claimant is informed of such extension in writing within the ninety-day period and is provided with an extension notice consisting of an explanation of the special circumstances requiring the extension of time and the date by which the benefit determination will be rendered).

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5.9 Review of Adverse Benefit Determination Regarding Health or Disability Benefit Claims . A Claimant has the right to have an Adverse Benefit Determination of a health or disability benefit claim reviewed in accordance with the following claims review procedure:

	(1)		To exercise the right to request a review of an Adverse Benefit Determination, a Claimant must submit a written request for such review to the Plan Administrator not later than 180 days following receipt by the Claimant of the Adverse Benefit Determination notification;

	(2)		The Claimant shall have the opportunity to submit written comments, documents, records, and other information relating to the claim for benefits to the Plan Administrator or, as applicable, to the Independent Fiduciary;

	(3)		The Claimant shall have the right to have all comments, documents, records, and other information relating to the claim for benefits that have been submitted by the Claimant considered on review without regard to whether such comments, documents, records or information was considered in the initial benefit determination;

	(4)		The Claimant shall have reasonable access to, and copies of, all documents, records, and other information relevant to the claim for benefits free of charge upon request, including (a) documents, records or other information relied upon for the benefit determination, (b) documents, records or other information submitted, considered or generated without regard to whether such documents, records or other information were relied upon in making the benefit determination, (c) documents, records or other information that demonstrates compliance with the standard claims procedure in making the benefit determination on the Claimant’s claim, and (d) documents, records or other information that constitutes a statement of policy or guidance with respect to the Plan concerning the denied treatment option or benefit for the Claimant’s diagnosis, without regard to whether such statement of policy or guidance was relied upon in making the benefit determination;

	(5)		The review of the Adverse Benefit Determination shall not give deference to the original decision;

	(6)		The review of the Adverse Benefit Determination shall be conducted solely by an Independent Fiduciary;

	(7)		If the initial benefit determination was based in whole or in part on a medical judgment, including determinations with regard to whether a particular treatment, drug or other item is experimental, investigational or not medically necessary or appropriate, the Independent Fiduciary conducting the review shall consult with a Health Care Professional with appropriate training and experience in the applicable field of medicine who was not consulted, and is not the subordinate of someone who was consulted, during the initial benefit determination; and

	(8)		The Claimant shall have the right to have identified to him the medical or vocational experts whose advice was obtained in connection with the Adverse Benefit Determination (without regard to whether the advice was relied upon in making such determination).

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The decision on review by the Independent Fiduciary Plan Administrator will be binding and conclusive upon all persons, and the Claimant shall neither be required nor be permitted to pursue further appeals to the Plan Administrator. Notwithstanding anything to the contrary in this Section 5.9, an expedited review process is available for Urgent Care Claims. A request for expedited review may be submitted orally or in writing, in which case all necessary information will be transmitted between the Plan Administrator and the Claimant by telephone, facsimile or other similarly expeditious method.

5.10 Review of Adverse Benefit Determination Regarding Non-Health and Disability Benefit Claims . A Claimant has the right to have an Adverse Benefit Determination regarding a claim other than a health or disability benefit claim reviewed in accordance with the following claims review procedure:

	(1)		The Claimant must submit a written request for such review to the Plan Administrator not later than 60 days following receipt by the Claimant of the Adverse Benefit Determination notification;

	(2)		The Claimant shall have the opportunity to submit written comments, documents, records, and other information relating to the claim for benefits to the Plan Administrator;

	(3)		The Claimant shall have the right to have all comments, documents, records, and other information relating to the claim for benefits that have been submitted by the Claimant considered on review without regard to whether such comments, documents, records or information was considered in the initial benefit determination; and

	(4)		The Claimant shall have reasonable access to, and copies of, all documents, records, and other information relevant to the claim for benefits free of charge upon request, including (a) documents, records or other information relied upon for the benefit determination, (b) documents, records or other information submitted, considered or generated without regard to whether such documents, records or other information were relied upon in making the benefit determination, and (c) documents, records or other information that demonstrates compliance with the standard claims procedure.

The decision on review by the Plan Administrator will be binding and conclusive upon all persons, and the Claimant shall neither be required nor be permitted to pursue further appeals to the Plan Administrator.

5.11 Notification of Benefit Determination on Review . Notice of the final benefit determination regarding an Adverse Benefit Determination will be furnished in writing or electronically to the Claimant after a full and fair review. Notice of an Adverse Benefit Determination upon review will be provided at the time described in Section 5.12, 5.13 or 5.14 below, whichever is applicable with respect to a claim, and will, in the case of any Adverse Benefit Determination:

	(1)		State the specific reason or reasons for the Adverse Benefit Determination;

	(2)		Provide specific reference to pertinent Plan provisions on which the Adverse Benefit Determination is based;

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	(3)		State that the Claimant is entitled to receive, upon request and free of charge, reasonable access to and copies of all documents, records, and other information relevant to the Claimant’s claim for benefits including (a) documents, records or other information relied upon for the benefit determination, (b) documents, records or other information submitted, considered or generated without regard to whether such documents, records or other information were relied upon in making the benefit determination, (c) documents, records or other information that demonstrates compliance with the standard claims procedure in making the benefit determination on the Claimant’s claim, and (d) in the case of claims regarding health or disability benefits, documents, records or other information that constitutes a statement of policy or guidance with respect to the Plan concerning the denied treatment option or benefit for the Claimant’s diagnosis, without regard to whether such statement of policy or guidance was relied upon in making the benefit determination.

	(4)		Describe the Claimant’s right to bring an action under section 502(a) of ERISA;

In the case of an Adverse Benefit Determination regarding health or disability benefits, such notice shall also:

	(1)		If an internal rule, guideline, protocol or other similar criterion was relied upon in making the Adverse Benefit Determination, either provide such criterion or state that such criterion was relied upon and that a copy of the criterion will be provided free of charge to the Claimant upon request;

	(2)		If the Adverse Benefit Determination is based on a medical necessity, experimental treatment or similar exclusion or limit, either explain the scientific or clinical judgment for the determination, applying the terms of the Plan to the Claimant’s medical circumstances, or state that such explanation will be provided free of charge to the Claimant upon request;

	(3)		Include the following statement: “You and your plan may have other voluntary alternative dispute resolution options, such as mediation. One way to find out what may be available is to contact your local U.S. Department of Labor Office and your State insurance regulatory agency.”

5.12 Timing of Notification Regarding Review of Health Benefit Claims . For Urgent Care Claims, such notice will be furnished as soon as possible, taking into account the medical exigencies, but not later than seventy-two hours following a request for review. For other claims, such notice will be furnished (i) within a reasonable period of time appropriate to the medical circumstances but not later than thirty days following a request for a review of a Pre-Service Claim, and (ii) within a reasonable period of time but not later than sixty days following a request for a review of a Post-Service Claim. The period of time within which a benefit determination on review will be made begins at the time an appeal is filed in accordance with the reasonable procedures of the Plan, without regard to whether all the information necessary to make a benefit determination on review accompanies the filing.

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5.13 Timing of Notification Regarding Review of Disability Benefit Claims . Such notice will be furnished within a reasonable period of time but not later than forty-five days following receipt of a request for a review (which period may be extended for up to forty-five additional days provided that the Plan Administrator both determines that such an extension is necessary due to special circumstances and notifies the Claimant prior to the expiration of the initial forty-five-day period of the special circumstances requiring an extension and the date by which the Independent Fiduciary expects to render the determination on review). The period of time within which a benefit determination on review will be made begins at the time an appeal is filed in accordance with the reasonable procedures of the Plan, without regard to whether all the information necessary to make a benefit determination on review accompanies the filing. In the event an extension of time is necessary due to the Claimant’s failure to submit necessary information, the period for making the Adverse Benefit Determination will be tolled from the date on which the notification of the extension is sent to the Claimant until the date on which the Claimant responds to the request for additional information.

5.14 Timing of Notification Regarding Review of Non-Health or Disability Claims. The Plan Administrator shall notify a Claimant of its determination on review with respect to the Adverse Benefit Determination of the Claimant within a reasonable period of time but not later than sixty days after the receipt of the Claimant’s request for review unless the Plan Administrator determines that special circumstances require an extension of time for processing the review of the Adverse Benefit Determination. If the Plan Administrator determines that such extension of time is required, written notice of the extension (which shall indicate the special circumstances requiring the extension and the date by which the Plan Administrator expects to render the determination on review) shall be furnished to the Claimant prior to the termination of the initial sixty-day review period. In no event shall such extension exceed a period of sixty days from the end of the initial sixty-day review period. In the event such extension is due to the Claimant’s failure to submit necessary information, the period for making the determination on a review will be tolled from the date on which the notification of the extension is sent to the Claimant until the date on which the Claimant responds to the request for additional information.

5.15 Exhaustion of Administrative Remedies . Completion of the claims procedures described in this Article V will be a condition precedent to the commencement of any legal or equitable action in connection with a claim for benefits under the Plan by a Claimant or by any other person or entity claiming rights individually or through a Claimant; provided, however, that the Plan Administrator may, in its sole discretion, waive compliance with such claims procedures as a condition precedent to any such action.

5.16 Payment of Benefits . If the Benefits Administrator, Plan Administrator or Independent Fiduciary determines that a Claimant is entitled to a benefit hereunder, payment of such benefit will be made to such Claimant (or commence, as applicable) as soon as administratively practicable after the date the Benefits Administrator, Plan Administrator or Independent Fiduciary determines that such Claimant is entitled to such benefit or on such other date as may be established pursuant to the Plan provisions or, as applicable, designated by the Claimant, Plan Administrator or Independent Fiduciary, as applicable.

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5.17 Authorized Representatives . An authorized representative may act on behalf of a Claimant in pursuing a benefit claim or an appeal of an Adverse Benefit Determination. An individual or entity will only be determined to be a Claimant’s authorized representative for such purposes if the Claimant has provided the Plan Administrator with a written statement identifying such individual or entity as his authorized representative and describing the scope of the authority of such authorized representative; provided that, for an Urgent Care Claim, a Health Care Professional with knowledge of a Claimant’s medical condition will be permitted to act as the authorized representative of the Claimant. In the event a Claimant identifies an individual or entity as his authorized representative in writing to the Plan Administrator but fails to describe the scope of the authority of such authorized representative, the Plan Administrator shall assume that such authorized representative has full powers to act with respect to all matters pertaining to the Claimant’s benefit claim under the Plan or appeal of an Adverse Benefit Determination with respect to such benefit claim.

5.18 Temporary Rules Regarding Health Benefit Claims .

Health benefit claims made under a Constituent Benefit Program prior to January 1, 2003 shall be subject to the following special benefit claims rules: Section 5.8 shall be applied in place of Section 5.6; Sections 5.5(3) and 5.5(4) shall be inapplicable; Section 5.10 shall be applied in place of Section 5.9; the special rules regarding health benefit claims in Section 5.11 shall be inapplicable; and Section 5.14 shall be applied in place of Section 5.12.

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VI.
Funding of Plan

6.1 Source of Benefits . Except with respect to benefits provided by an Insurer or an HMO, the Plan shall be self-funded and any benefit payable under the Plan shall be paid from the general assets of the Employer.

6.2 Participant Contributions .

(a) Participants’ contributions, if any, shall be determined by the Employer and shall be set forth in each Constituent Benefit Program Document, Upon enrollment of a Participant in, amendment of coverage under, or enrollment of an Eligible Dependent in any Constituent Benefit Program, each Participant shall be advised of any required Participant contributions with respect to the coverage under such Constituent Benefit Program. Further, Participants’ contributions shall be subject to change by and in the sole discretion of the Employer, and each Participant shall be advised of any such change in the amount of such contributions as provided in the applicable Constituent Benefit Program and, in the absence of such provision, in writing no later than thirty-one days prior to the effective date of such change.

(b) Participants’ contributions shall be paid by Participants in the manner and within the time period set forth in the applicable Constituent Benefit Program Document.

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