STEPHEN R. BRUCE LAW OFFICES

1667 K ST., NW, SUITE 410

WASHINGTON, D.C. 20006

202-289-1117

FAX: 202-289-1583

stephen.bruce@prodigy.net

January 19, 2016

Submitted via: e-ORI@dol.gov

Office of Regulations and Interpretations

Employee Benefits Security Administration

Room N-5655

U.S. Dept. of Labor

200 Constitution Avenue NW

Washington D.C. 20210

Re: Claims Procedure Regulations for Plans Providing Disability Benefits

(RIN 1210-AB39)

Dear Assistant Secretary Borzi:

I write to comment on the proposed regulations to amend the claims procedure 

regulations at 29 C.F.R. 2560.503-1 applicable to disability benefits. I am an attorney 

whose practice for 35 years has been devoted to the representation of workers and retirees 

who have been denied benefits from ERISA-governed benefit plans. I am well-situated

to comment on these regulations based on my experiences in this field, including writing 

Pension Claims: Rights and Obligations (1988 and 1993), and representing individuals 

and classes of employees and retirees in some of the largest and most significant actions 

under ERISA, including Amara v. CIGNA Corp., 563 U.S. 421 (2011), and Page v. 

PBGC, 968 F.2d 1310 (D.C. Cir. 1992) (which resulted in a $1 billion recovery).

Approximately 140 million current and former employees and their families are 

eligible for employee benefits as part of the consideration for their labor. Because health, 

disability and retirement benefits are so essential to their well-being, ensuring “full and 

fair review” of denied benefit claims is critical to their welfare. As the Department 

recognizes, the denial of benefits is a “severe hardship for many individuals.” 80 F.R. 

72015 (Nov. 18, 2015). 

As the Supreme Court has recognized, the fundamental structural problem with 

employee benefit claims is that “the entity that administers the [employee benefit] plan, 

such as an employer or an insurance company, both determines whether an employee is 

eligible for benefits and pays benefits out of its own pocket [and] this dual role creates a 
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conflict of interest.” Metropolitan Life Ins. Co. v. Glenn, 554 U.S. 105, 108 (2008). Not 

only does this dual role mean that critical decisions about benefits are being made by 

individuals who lack neutrality or independence, but it also means that the experts 

retained by the sponsoring companies or insurance companies are also conflicted and 

biased in favor of the entities who retained them.

When Congress enacted ERISA on Labor Day of 1974, it delegated the 

responsibility to the Department of Labor to issue regulations under ERISA §503, 29 

U.S.C. §1133, to ensure a “full and fair review by the appropriate named fiduciary of the 

decision denying [a] claim” for benefits under an employee benefit plan. In May 1977, 

the Labor Department issued benefit claims regulations codified at 29 C.F.R. 2560.503-1 

to enforce ERISA’s requirements. 42 F.R. 27426. The regulations were “in response to 

concerns that predated enactment of ERISA, in particular the lack of any uniform 

procedural standards for benefit claims resolution and participants’ lack of information 

about claims procedures generally.” 63 F.R. 48390 (Sept. 9, 1998).

By 1998, the Department had already recognized that the 1977 benefit claims 

regulations were “no longer adequate to protect participants and beneficiaries.” 63 F.R. 

48390. The Department acknowledged what the case law was already showing: The 1977 

regulations were not ensuring “full and fair review” of denied benefit claims, and were 

allowing review procedures to persist that were obviously conflicted and biased in favor 

of upholding benefit denials, such as by allowing the same person to “review” a benefit 

denial who originally denied the claim, or allowing company-appointed “committees” to 

“defer” to the persons who originally denied the claims. See, e.g., Springer v. Wal-Mart 

Assocs. Group Health Plan, 908 F.2d 897, 901 (11th Cir. 1990).

The Department took important steps to address some of these deficiencies for 

group health and disability plans in 2000, and it took further steps for “nongrandfathered” group health plans in the 2011 interim final regulations under the 

Affordable Care Act (which were finalized without reservation on the same day as these 

proposed regulations). However, the Department has never amended the 1977 regulations 

for pension plans, severance plans, or life insurance plans. And the Department has not 

amended the 2000 regulations for disability plans or grandfathered health plans. See, e.g., 

66 F.R. 35886 (July 9, 2001) (recognizing that “the rules applicable to pension plans (and 

welfare plans other than group health and disability) have remained essentially 

unchanged from the 1977 regulation”).

The Department is to be applauded for proposing these regulations to improve the 

existing claims regulations for disability benefits and bring them into line with the 

regulations for non-grandfathered health claims. But there is no reason why reforms for 
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pension, severance, life insurance benefits, and grandfathered health benefits should 

continue to be delayed as the 1977 regulations approach their 40th anniversary and the 

2000 regulations have already passed their 15th anniversary. 

As described below, the Department also needs to take immediate steps to protect 

participants and beneficiaries in disability and all other employee benefit plans from the 

rapidly escalating efforts by company sponsors and insurers to gut the Department’s 

claim procedures and ERISA’s procedural protections by redrafting the claims and 

appeals procedures in SPDs and plan documents. Even as this notice and comment 

process proceeds, plan sponsors and insurers are attempting to unilaterally write ERISA’s 

protections out of the law, the regulations, and court decisions, and also to discourage and 

even intimidate benefit claimants from pursuing internal appeals and court actions by 

imposing new, burdensome requirements.

I. Comments Requested in the Proposed Regulations

Comments on Redrafting of SPDs and Plan Documents to Defeat Procedural Rights 

of Participants and Beneficiaries

The DOL has invited comment on the unilateral shortening of statutes of 

limitations by plan sponsors and insurers that is occurring since the Supreme Court’s 

decision in Heimeshoff v. Hartford Life & Accid. Ins Co., 134 S.Ct. 604 (2013). This is 

certainly a critical issue because the Supreme Court has effectively encouraged such 

redrafting in Heimeshoff. But the problem of redrafting claim procedures in order to 

defeat the rights of participants and beneficiaries cannot be confined to statutes of 

limitations. 

I respectfully submit that DOL’s regulations should, without delay, address the 

ways in which companies, insurers and TPA’s are aggressively trying to limit, through 

drafting, the benefit claim procedures and judicial review, not only for disability benefits 

but also pensions, severance and life insurance benefits, as well as both grandfathered 

and non-grandfathered health benefits. Unless DOL addresses this, DOL will carefully be 

making reforms in certain areas, while a freight train bears down not only on those 

reforms but also the modest rights that participants and beneficiaries have secured over 

the years by virtue of the 1977 and 2000 regulations, the statutory provisions and the case 

law. 

Articles in the trade press, blogs and defense-side listserves trumpet the profound 

change that is already underway. In an October 20, 2015 interview for Fiduciary News, 

Stephen Rosenberg, who represents Aetna and other companies, speaks of a “profound 
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change to the benefit plan environment”:

There is more and more a focus in plan draftsmanship on including terms 

that could limit, either substantively or tactically, the ability of participants 

or beneficiaries to successfully bring suit, such as the increased use of 

contractual limitations periods and venue selection clauses, which are both 

issues that have garnered the attention, to varying degrees, of the Supreme 

Court. I think plaintiffs’ successes in ERISA litigation over the recent past 

have really driven plan sponsors and their lawyers to think proactively 

about what they can do, in writing their plans, to raise the level of difficulty 

for plaintiffs and their lawyers in ERISA litigation.

See also “View from Sidley: Steps for Employers to Consider to Mitigate ERISA 

Litigation Risk” in the October 10, 2015 issue of Bloomberg BNA’s Pension & Benefits 

Daily (advocating redrafting of plan provisions on statute of limitations, including “antitolling language,” forum selection, releases and arbitration); “View from Proskauer: 

Liability Through ERISA Plan Design: Statute-of-Limitations Periods, Venue Provisions 

and Anti-Assignment Clauses” in the March 15, 2015 issue of Pension & Benefits Daily

(same). 

To illustrate this trend, Exelis, a large defense contractor which was 

formerly a part of ITT, recently adopted similar provisions as “Legal Action 

Provisions” in the same Resolution that Exelis adopted to terminate a longstanding 

retiree life insurance plan, thereby attempting to: 

(a) Make “the exclusive venue for any action arising under this plan ... 

the Middle District of Florida,” 

(b) Impose a “one year” limitations period on actions by claimants, while 

allowing the plan or its fiduciaries to “recover[] overpayments of 

benefits” or to “bring any legal or equitable action against any party” 

outside of that period; and

(c) Limit any award of attorneys’ fees against the plan to “the lowest 

amount of fees” while simultaneously providing for an award of fees 

against a participant “unless the court specifically finds that there was 

a reasonable basis for the action.” 

Attachment 1.
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The claims and appeals section of the SPD for the Kodak Company (Attachment 

2) goes even further and epitomizes the new aggression to defeat procedural rights by 

unilateral plan draftsmanship. Kodak’s “summary” description of its “claims and appeals 

procedures” extends for 16 pages and contains the following efforts to defeat participant 

rights and procedural protections:

The plan administrator’s authority is fully discretionary in all matters 

related to the discharge of his or her authority under the plan including, 

without limitation, his or her construction of the terms of the plan, his or 

her determination of eligibility for coverage or benefits, the interpretation 

and application of legal requirements and precedents, and whether or not to 

compel binding or non-binding arbitration or mediation.

IF YOU DO NOT FILE YOUR CLAIM BY THE APPLICABLE 

DEADLINE AND IN THE PROPER MANNER, YOUR CLAIM WILL 

EXPIRE AND IT WILL BE AUTOMATICALLY DENIED IF 

SUBSEQUENTLY FILED. YOU WILL NEVER BE ABLE TO 

PROCEED WITH A LAWSUIT BASED ON THAT CLAIM.

If your claim involves a plan change or amendment, you are deemed to 

know about your claim as it relates to the change or amendment when the 

change or amendment is first communicated to plan participants, whether 

or not the change or amendment has taken effect by that date. The 60-day 

period for filing a claim regarding a plan change or amendment starts to run 

as of the date the change or amendment is first communicated to plan 

participants.

If you do not receive notice of a decision or an extension notice within 90 

days of filing your claim, you must assume that your claim has been 

denied. If you receive an extension notice, but you do not receive notice of 

a decision within 180 days of filing a claim, you must assume that the claim 

is being denied.

The claims reviewer has full discretionary authority to determine the type 

of claim being processed.

No form of communication other than a letter (for example, telephone or email) will constitute an appeal ...

If you do not file your appeal by the deadline in an appropriate format, your 
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claim will expire and the claim denial or assumed denial will be FINAL. 

You will not be able to pursue an appeal or a lawsuit in connection with 

that claim.

IMPORTANT! ... if you do not appeal properly and on time, your claim 

cannot be raised in subsequent litigation. You cannot avoid this rule by 

filing a new initial claim on the same subject with different arguments.

You appeal letter must be in the form directed by the claims reviewer, and 

must include all information required by the claims reviewer as well as the 

reasons why you believe the claim was improperly denied ...

[A]ny arguments not made and evidence not filed on appeal CANNOT BE 

RAISED in subsequent litigation.

If you do not object to any perceived conflicts on appeal, you will be 

considered to have agreed that the claims reviewer does not have a conflict 

of interest, and you cannot raise this issue in a lawsuit.

If you do not receive notice of the decision regarding an appeal within the 

applicable review period, you must assume that the appeal has been denied.

[T]he plan administrator for the plan in question retains the right to compel 

binding or non-binding arbitration or mediation. Also, in some cases, a plan 

may require or permit a second level of appeal ... If the second level of 

appeal is mandatory, you must complete the second appeal process before 

you will be entitled to file suit.

If you want to file suit, you must do so by the earlier of: 1. The date that is 

90 days after the date that your claim is denied on appeal ...; or 2. The date 

that is 90 days after a cause of action accrued....

If the applicable 90-day deadline for filing a lawsuit ... is, for any reason, 

not applied by a court, then the deadline for filing the suit will be no longer 

than one year from the earlier of the date the claim was denied on appeal or 

the date the cause of action accrued.

IF YOU DO NOT FILE SUIT BY THE APPLICABLE DEADLINE, 

YOUR CLAIM WILL EXPIRE AND YOU WILL NEVER BE ABLE TO 

PROCEED WITH A LAWSUIT IN CONNECTION WITH THAT CLAIM 

OR A RELATED CLAIM.
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All lawsuits against or involving one or more of Kodak’s plans must be 

filed in the Federal Court for the Western District of New York located in 

Rochester, New York, unless the plan administrator agrees to a different 

forum.

If you file a lawsuit and the court or arbitrator rules against your claim, you 

will be responsible for the attorney’s fees and other expenses incurred by 

the plan, its fiduciaries, Kodak and other related parties in defending 

against your action, unless otherwise agreed to by the plan administrator or 

otherwise ordered by the court or arbitrator. If you file a lawsuit and the 

court rules in your favor, the plan, its fiduciaries, Kodak and other related 

parties will not be responsible for your attorney’s fees and other expenses 

unless otherwise ordered by the court or arbitrator.

If your lawsuit is successful, the applicable plan, its representatives and 

fiduciaries, Kodak, and related parties will not be liable for extracontractual 

or punitive damages, and will only be liable for pre-judgment interest if 

ordered by a court or arbitrator. You will not be entitled to benefits in 

excess of those promised by the terms of the written plan document, 

regardless of what oral or written statements may have been made to you.

As Kodak’s 16-page SPD and Exelis’ Resolution illustrate, this is a freight train 

bent on destroying the protective rules for venue, statute of limitations, attorneys’ fees, 

arbitration, choice of law, evidence, assignment of claims, and practically anything else 

that can be redrafted to gain an advantage for the plan sponsor or insurer. Obviously, the 

movement to destroy through unilateral redrafting as many of the reforms in ERISA, the 

regulations, and the case law has been fueled by Heimeshoff and the Supreme Court’s 

decisions on arbitration clauses. But regardless of the fuel, this is a train that is picking up 

steam. If no action is taken by the Department, this Administration will be the one under 

whose watch “full and fair review” deteriorated even more than in the long 40 years since 

the admittedly inadequate 1977 regulations were issued. 

Under the authority of ERISA §503, the Department has already issued the rule in 

29 C.F.R. 2560.503-1(b)(3) that “The claims procedures for a plan will be deemed to be 

reasonable only if — ... (3) The claims procedures do not contain any provision, and are 

not administered in a way, that unduly inhibits or hampers the initiation or processing of 

claims for benefits.” The 1977 regulatory preamble states that “[A] claims procedure 

which meets the minimum requirements set forth in this regulation nevertheless may be 

deemed not reasonable if it contains other provisions which unduly inhibit or hamper the 

initiation or processing of plan claims. For example, a claims procedure may be deemed 
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unreasonable if it requires a claimant to file a complicated claim form before the claim is 

considered properly filed, or if it requires the payment of a fee as a condition for filing a 

claim or obtaining review of a denied claim. It should be noted that a procedure which is 

reasonable on its face may be deemed unreasonable if it is administered in such a way as 

to unduly inhibit or hamper the initiation or processing of plan claims.” 42 F.R. 27426-27 

(5/27/1977) (the same examples are in the regulation itself).

1

Although the 1977 regulation is prescient, the Department has never brought an 

action to enforce this provision. Besides strengthening the rule by bringing enforcement

actions to face the challenges brought on by the redrafting that Kodak and other 

companies are presently engaged in, the Department could strengthen this regulation by

connecting it with the rule in ERISA §404(a)(1)(D), 29 U.S.C. §1104(a)(1)(D), that a 

fiduciary may only lawfully follow a plan provision “insofar as [it is] consistent with the 

provisions of this title” I of ERISA, which includes ERISA §§502 and 503, and that a 

plan provision that inhibits or hampers judicial redress for a breach of fiduciary duty in 

the claim procedure is “void” under ERISA §410(a), 29 U.S.C. §1110(a), as an 

exculpation “against public policy” of “a fiduciary from responsibility or liability for any 

responsibility, obligation or duty.” In addition to the policy embodied by ERISA §503, 

ERISA §2(b), 29 U.S.C. §1001(b), declares it “the policy” of the Act “to protect ... the 

 

1

 Two decisions have relied on this regulation. In Bond v. Twin Cities Carpenters 

Pension Fund, 307 F.3d 704, 706 (8th Cir. 2002), the Twin Cities Carpenters’ plan 

provided that arbitration was the sole remedy for a participant who was not satisfied with 

a benefit determination, with a presumption that the participant would bear half the costs. 

The Eighth Circuit held this violated the regulations which “unequivocally prohibit plans 

from using procedures that hinder the processing of claims.” “Under the ERISA plan in 

Bond’s case, if a Plan participant wants to appeal an adverse board determination, they 

are faced with the presumption that they will have to shoulder half of the costs of 

arbitration. The threat of having to pay the arbitrator’s expenses no doubt discourages the 

pursuit of many legitimate claims by those who cannot afford such costs. A claims 

system such as this is unduly burdensome, and not permitted by ERISA.” See also Booth 

v. Hartford Life & Accident Ins. Co. of Am., 2009 U.S. Dist. LEXIS 130887, *33 

(D.Conn. 2/4/2009) (provision that a claim was not considered complete unless the 

employer completed an applicable section of the claim form violated 29 C.F.R. 2560.503-

1(b)(3); the defendant “administered the requirement that an Employer Form be provided 

in a manner that unduly inhibited the initiation of Booth’s claim for benefits. Particularly 

in a situation in which the employer refused to furnish the necessary form, Hartford’s 

obligation to avoid hindering claims and to decide claims promptly meant that it could 

not delay processing of Booth’s claim indefinitely while it waited for an Employer Form 

that would not arrive for almost two years”).
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interests of participants in employee benefit plans and their beneficiaries ... by providing 

for appropriate remedies, sanctions and ready access to the Federal courts.”

The Department could also strengthen the regulation by expanding the examples 

of inhibiting or hampering claims to address the ways that plan sponsors and insurers are 

presently attempting to unilaterally override protections, e.g., through shortened statutes

of limitations, restricted exclusive venue, and intimidating provisions about paying the 

company’s or insurer’s attorneys’ fees. Another baseline that the Department could adopt 

immediately is that any limiting provision has to be in both the plan document and the 

SPD. The regulation could also specifically state that the Department will apply a totality 

of the circumstances test to determine whether a combination of limiting provisions 

“unduly inhibits or hampers the initiation or processing of claims.” Finally, the 

Department can make clear that actions under ERISA §§409 and 510 are available to 

secure redress for interference with the exercise of rights under ERISA to obtain a full 

and fair review.

Comments on Unilaterally Shortened Statute of Limitations Periods

Because the expiration of a statute of limitation bars any access to the courts for 

review of a denied benefit claim, statutes of limitation are a critical area for the 

Department to address in ensuring a full and fair review of denied benefit claims, 

including “ready access” to the courts. 

As stated, the Supreme Court’s 2013 Heimeshoff decision obviously encouraged 

the shortening of statutes of limitations. Heimeshoff ruled that the plan document for an 

employee benefit plan may contractually shorten the limitations period that otherwise 

applies under borrowed state law (which is often three or six years) and that the plan 

document may also specify that the shortened limitations period, e.g., one year or even 

less, commences “at a particular time.” 134 S.Ct. at 611-12. Although the Court hedged 

that the limitation must always be “reasonable, id. at 610, Heimeshoff clearly means that 

an employee’s or a non-ERISA lawyer’s common understanding of how much time is 

allowed to file a lawsuit, including when the limitations commences to run, may not be 

accurate. Even before Heimeshoff, lower courts sometimes upheld unilateral plan 

provisions drastically shorter than any analogous state law period for breach of contract. 

See, e.g., Davidson v. Wal-Mart Assocs. Health & Welfare Plan, 305 F.Supp.2d 1059, 

1068-73 (S.D. Iowa 2004) (upholding Wal-Mart’s shortening of the limitation period for 

a benefit claims denial to “45 days from the decision on appeal”).

To address this issue, the Department should first rule that both the SPD and any 

denial letter must disclose any limitations period for instituting a court action shorter than 
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the period in ERISA §413, 29 U.S.C. §1113, or the State statute of limitations for written 

contracts (e.g., a 180-day filing deadline when the state limitations period for written 

contracts is three years). The denial letter should also identify the specific date on which 

the limitations period will expire in order to create a safe harbor for anyone who files suit 

before that date. Because any shortened limitations period is a plan term, as the DOL’s

preamble points out, plan administrators are in much a better position to compute the date 

of expiration of the limitations period and should not be hiding the ball from claimants 

about what position they will take in litigation. If plan administrators are functioning as 

fiduciaries, they will want the participant or beneficiary to be fully apprised of the date by 

which any suit must be filed from the plan administrator’s perspective. 

The First, Third, and Sixth Circuit have already interpreted the existing regulations 

to require the denial letter to provide notice of when any limitations period will expire. 

Ortega Candelaria v. Orthobiologics LLC, 661 F3d 675, 680 (1st Cir. 2011); Mirza v. Ins. 

Admin. of Am., Inc., 800 F.3d 129, 133-136 (3d Cir. 2015); Moyer v. Metro. Life Ins. Co.,

762 F.3d 503, 505-7 (6th Cir. 2014); accord, Kienstra v. Carpenters’ Health & Welfare 

Trust Fund of St. Louis, No. 4:12CV53 HEA, 2014 WL 562557, at *4 (E.D. Mo. Feb. 13, 

2014), aff’d sub nom. Munro-Kienstra v. Carpenters’ Health & Welfare Trust Fund of St. 

Louis, 790 F.3d 799 (8th Cir. 2015). Spinedex Physical Therapy USA, Inc. v. United 

Healthcare of Arizona, Inc., 770 F.3d 1282, 1295 (9th Cir. 2014) also holds that the SPD 

must disclose the “limitation of the time for bringing suit” in “close conjunction” with the 

description of the benefits because it “qualifies as a circumstance ‘which may result in 

disqualification, ineligibility, or denial or loss of benefits.’” Because of the confusion 

produced by Heimeshoff, the DOL should do more than interpret its existing rules; it 

should revise them to eliminate any possible ambiguity about the obligation to disclose 

any shorter period. 

Since Heimeshoff left open the possibility that an internal limitations period could 

start running even before the internal claim process is complete, 134 S.Ct. at 614-15, 

DOL should also step in and exercise its authority to ensure reasonableness and a full and 

fair review by clarifying that any limitations period is tolled while a claimant is 

exhausting the internal review process and that any plan provision that does not provide 

for such tolling violates the “full and fair review” mandated by 29 U.S.C. §1133. The 

Fourth Circuit has already held that limitations periods should be tolled during the 

internal appeal process. See White v. Sun Life Assur. Co. of Canada, 488 F.3d 240, 252 

(4th Cir.), cert. denied, 552 U.S. 1022 (2007). And the 2000 regulations already contain a 

tolling provision while a dispute is in a voluntary process. 65 F.R. 70254 (Nov. 21, 

2000); 29 C.F.R. 2560.503-1(c)(3)(ii). Guidance from the Department on what is a 

reasonable plan-based limitations provision is entirely consistent with the 2000 

regulations and the Department’s previous decisions to allow generous deadlines for the 
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claims process, e.g., routine 90 day extensions for initial decisions on claims and routine 

60-day extensions for decisions on appeal simply by asserting “special circumstances.”

See 29 C.F.R. 2560.503-1(f)(1) and (i)(1). 

In light of the generous time periods already built into the claims regulations, the 

Department could also give plan sponsors and insurers the choice of tolling and then 

allowing a limitations period equal to the ERISA §413 period or the analogous state 

contract period or tolling with a shortened time period for both the initial decision and 

any decision on appeal, reduced from the current 180-day period (with an extension) for 

the initial decision and the current 120-day period (with an extension) for the decision on 

appeal. There is no reason why the generous periods in the regulations should ever be 

combined with a shortened limitations period.

Comments on Unilateral Venue Selection Provisions

As indicated above, there is a serious issue related to Heimeshoff that the proposed 

regulations do not address. In Smith v. Aegon Companies Pension Plan, 769 F.3d 922, 

930 (6th Cir. 2014), a Sixth Circuit panel, over a dissent from Judge Clay, allowed a 

unilaterally-added forum selection clause which required the plaintiffs to travel to a 

distant venue (Cedar Rapids, Iowa) in contravention of the liberal venue provision in 

ERISA §502(e)(2), 29 U.S.C. §1132(e)(2). The panel majority ruled that the plan 

provision was “presumptively valid and enforceable” even though it was “not the product 

of an arms-length transaction” and restricted the venue available under §502(e)(2). Judge 

Clay pointed out that going to Cedar Rapids to sue was not a viable option for “retirees 

on a limited budget, sick or disabled workers, widows and other dependents—[who] are 

often the most vulnerable individuals in our society, and are the least likely to have the ... 

wherewithal to litigate in a distant venue.” 760 F.3d at 935. 

Certiorari in Smith v. Aegon (14-1168) was denied on January 11, 2016. In an 

invitation brief before the Supreme Court in Aegon, the Solicitor General recommended 

that certiorari be denied because there was no circuit conflict while explaining that the

Aegon majority was wrong because the text of ERISA §502(e)(2) is clear and Congress 

expressly recognized that this would provide participants and beneficiaries with a 

“liberal” choice of venue, see S.Rep. 93-383 (1973), available at 1974 U.S.C.C.A.N. 

4889, 4989. The Solicitor General also pointed out that under the analytical framework in 

The Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 15 (1972), unilateral forum selection 

clauses are “unenforceable” as against “public policy.” 

Obviously, forum selection clauses like the one in Aegon are being used to 

disadvantage ERISA claimants and place burdens on their right to sue. In Turner v. 
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Sedgwick Claims Mgmt. Servs., 2015 WL 225495 at *21 (N.D. Ala. Jan. 16, 2015), the 

court encouraged the Department to regulate in this area as opposed to using “the ad hoc, 

highly informal means of amicus briefs.” To ensure that there are no more circuit 

decisions like Aegon, the Department’s regulations should make clear that the venue 

provision in ERISA §502(e)(2), which not only Congress but the courts have long 

recognized as “liberal,” see, e.g., Varsic v. United States District Court for Central 

District of Calif., 607 F.2d 245, 248 (9th Cir. 1979), cannot be overruled by a unilateral 

plan or policy provision. Not only is this contrary to ERISA’s policy, but it also violates 

the ERISA §404(a)(1)(D) requirement that the fiduciary follow a plan provision only 

“insofar as [it is] consistent with the provisions of this title” I of ERISA, which includes 

ERISA §502(e)(2).

Comments on Unilateral Attorneys’ Fee Provisions

Like the unilaterally redrafted venue provisions, the redrafted provisions by 

Exelis, Kodak and others on attorneys’ fees are at odds with the discretion Congress 

granted the courts in ERISA §502(g)(1), 29 U.S.C. §1132(g)(1), and with the Supreme 

Court’s decision on the exercise of that discretion in Hardt v. Reliance Standard Life Ins., 

560 U.S. 242 (2010). Even though Supreme Court decisions bind all lower federal and 

state courts, these unilateral provisions seek to overrule the factors set forth in Hardt. 

Obviously, the effort to override Hardt by private unilateral action is doomed to fail. But 

in the meantime, without Department action, these provisions are discouraging and even 

intimidating participants and beneficiaries from filing suit to obtain the “ready access” to 

the courts that Congress promised. Anyone with experience in litigation knows how

discouraging and intimidating even the remote prospect of having to pay a corporation’s 

high-priced law firm is to an individual who would be bankrupted by the payment of 

litigation expenses. As indicated above, an ERISA §510 action is available to redress 

efforts to “fine,” “discipline” or “discriminate” against an individual for the exercise of 

rights under ERISA and the plan. Inter-Modal Rail Emples. Ass'n v. Atchison, Topeka & 

Santa Fe Ry., 520 U.S. 510, 515 (1997), holds that ERISA §510 extends to plan 

amendments.

Comments on Unilateral Forced Arbitration Provisions

The Department should also clarify and provide further guidance on its position on 

the role of arbitration in a “full and fair review.” As Judge William Young recently 

wrote, “forced arbitration bestrides the legal landscape like a colossus, effectively 

stamping out the individual’s statutory rights wherever inconvenient to the businesses 

which impose them.” In re Nexium (Esomeprazole) Antitrust Litig., 309 F.R.D. 107, 146-

147 (D. Mass. 7/15/2015). A December 2013 Baker & McKenzie article entitled “A Sea 
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Change for ERISA Litigation” encourages companies with benefit plans to take 

advantage of recent Supreme Court decisions on arbitration and class action waivers by 

adopting mandatory arbitration provisions for ERISA claims (including statutory claims) 

with express waivers of class actions.2 The article touts that “[t]wenty years from now 

there may no longer be Employee Retirement Income Security (“ERISA”) class actions.”

See also “Arbitration of ERISA Claims: Yes You Can!” in the July 20, 2015 issue of 

Bloomberg BNA’s Pension & Benefits Daily.

The Baker & McKenzie article inexplicably fails to take into account that the DOL 

has a longstanding position, first taken in 1977, that arbitration cannot be a mandatory 

part of a “full and fair” review procedure unless it has been adopted in a collective 

bargaining agreement. 29 C.F.R. 2560.503-1(b)(2); DOL Adv. Op. (AO) 82-46A (Sept. 

3, 1982); 42 F.R. 27427 (May 27, 1977). The 2000 regulations reiterate the position taken 

in the 1977 regulatory preamble and the regulation for plans established pursuant to 

collective bargaining agreements that mandatory arbitration cannot be part of the internal 

review and appeal procedure for group health or disability benefit claims unless it has 

been the subject of collective bargaining. 29 C.F.R. 2560.503-1(c)(4) and (d); 65 F.R. 

70253-54. (While the 2000 regulations prevent arbitration from being a “mandatory” part 

of the claims procedure for these benefits, an exception allows a plan to make claimants 

go through a “non-binding” hoop with ensuing delays and no prospect of attorneys’ fees. 

29 C.F.R. 2560.503-1(c)(4)(i)). The regulation that prevents arbitration from being 

mandatory should be extended to all employee benefit claims and the exception should be 

removed. Arbitration should only be allowed on a mutually agreed basis and should not 

be allowed to become an excuse for delay.

Even more fundamentally, Baker & McKenzie’s article failed to take into account 

that the Supreme Court’s recent decisions on arbitration are predicated on agreements to 

arbitrate by both sides. Even though the degree of substantive agreement by an employee 

benefit plan participant may in some respects be comparable to a consumer’s agreement 

to a consumer contract, there still must be at least a pro forma agreement by a consumer. 

Mandatory arbitration cannot be unilaterally written into the terms of the plan’s claims 

procedure without even a pro forma agreement by the participant or beneficiary

consistent with decisions in the First, Second, Third, Fourth, Sixth, Seventh and Ninth 

Circuits holding unilateral arbitration provisions to be unenforceable.3

 

2

 Available online at http://www.bakermckenzie.com/ALNAASeaChangeDec13/.

3 Campbell v. Gen. Dynamics Gov’t Sys. Corp., 407 F.3d 546, 557-58 (1st Cir. 

2005) (affirming denial of motion to compel arbitration when employer failed to provide 

notice of agreement to arbitrate; mass email about the General Dynamics’ new dispute 
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The Baker & McKenzie article also inexplicably fails to recognize that DOL’s 

regulations prohibit imposing the costs of arbitration on the participant. See 29 C.F.R. 

2560.503-1(b)(3). Indeed, the Senate-passed version of ERISA would have required all 

plans to include arbitration as a voluntary option for employee benefit plan participants, 

but the conferees rejected that provision because it would be “too costly” for plan 

sponsors. III ERISA Leg. Hist. 4769 (explanation of Senator Javits). Many arbitration 

procedures also do not provide for awards of attorney’s fees, whereas ERISA §502(g) 

expressly provides the courts with discretion to make such awards as part of ERISA’s

enforcement scheme.

Because more advocacy pieces like Baker & McKenzie’s can be expected and 

because of widespread misperceptions about the Supreme Court’s jurisprudence on 

arbitration, the Department of Labor should again clarify its position on the role of 

arbitration in a full and fair review of all denied benefit claims and provide guidance to 

the public that addresses the points described above, including explaining again the 

Department’s longstanding regulatory position and addressing the circuit decisions 

prohibiting the unilateral imposition of forced arbitration. 

II. Comments on Proposed Regulations

The undersigned also offers the following comments on the proposed regulations 

for disability benefits that are principally carried over from the 2011 ACA regulations for 

non-grandfathered group health benefits:

 

resolution policy “did not state directly that the Policy contained an arbitration agreement 

that was meant to effect a waiver of an employee’s right to access a judicial forum,” did 

not “contain anything to put the recipient on inquiry notice of that possibility by 

conveying the Policy’s contractual significance,” and did not require an “affirmative 

response of that sort would have signaled that the Policy was contractual in nature”); 

Schnabel v. Trilegiant Corp., 697 F.3d 110, 120 (2d Cir. 2012); Cardionet, Inc. v. CIGNA 

Health Corp., 751 F.3d 165, 171 and 177 (3d Cir. 2014); Hooters of Am., Inc. v. Phillips, 

173 F.3d 933, 938-40 (4th Cir. 1999); Floss v. Ryan’s Family Steak Houses, Inc., 211 

F.3d 306, 315-16 (6th Cir. 2000); Gibson v. Neighborhood Health Clinics, 121 F.3d 

1126, 1132 (7th Cir. 1997); Comer v. Micor, Inc., 436 F.3d 1098, 1101-04 (9th Cir. 

2006). 

The proposed fiduciary regulation at 80 F.R. 21,973, 21,985 (April 20, 2015) 

would also ban waivers of participation in class actions from any arbitration agreement 

concerning investment recommendations by a fiduciary under ERISA.
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1. Independence and Impartiality—Avoiding Conflicts of Interest

The Department’s 2000 claims procedure regulations established that full and fair 

review of an adverse benefit determination for health or disability benefits must be by a 

named fiduciary “other than the person who made the initial determination” and must not 

afford deference to an initial adverse determination. 29 C.F.R. 2560.503-1(h)(3)(ii) and 

(h)(4); 65 F.R. 70252 (Nov. 21, 2000). This is a very important reform, but as Professor

Katherine Vukadin has pointed out, “few plan participants ever access the appeal 

processes.” “Unfinished Business: The Affordable Care Act and the Problem of Delayed 

and Denied ERISA Healthcare Claims,” 47 J. Marshall L. Rev. 1, 10 (Spring 2014). As a 

result, it is important that the Department’s regulations ensure that the initial decision is 

unbiased, and not just that conflicts are not blatantly present on appeal. 

The 2000 regulations applicable to group health and disability benefit claims also 

already required that experts who have been consulted by the plan administrator who 

made the initial determination or by the named fiduciary conducting a review must be 

identified, without regard to whether their advice was relied upon. 29 C.F.R. 2560.503-

1(h)(3)(iv) and (h)(4). In addition, any healthcare professional consulted on review must 

not be the individual consulted in connection with the initial adverse determination. 29 

C.F.R. 2560.503-1(h)(3)(v). 

To foster independence and impartiality in claims adjudication, the 2011 ACA 

regulations add that for non-grandfathered health benefits, decisions regarding hiring, 

compensation, termination, promotion, or other similar matters with respect to an 

individual, such as a claims adjudicator or medical expert, must not be based on the 

likelihood that the individual will support the denial of benefits. 75 F.R. 43333; 29 C.F.R. 

2590.715-2719(b)(2)(ii)(D). 

The proposed regulations for disability claims on the impartiality of claims 

decision-makers and reviewers are important as a continuation of the DOL’s efforts to 

lessen the effect that bias has in the claims and appeals process. However, everyone in 

the disability field knows that the medical reviewers hired by insurance companies are 

biased in favor of the insurer’s position. And everyone knows, too, that a modest rule like 

the Department has proposed that the retention of medical reviewers should not be 

contingent on the likelihood that they support the insurer’s position is going to be largely 

ineffective. It is time for the Department to take bolder action and accept the Supreme 

Court’s decade-old invitation in Black & Decker Disability Plan v. Nord, 538 U.S. 822, 

831-32 (2003), to issue a treating physician rule addressing the weight to be accorded 

opinions of the claimant’s treating physician vis a vis the opinions of medical reviewers 

retained by the insurer. Nord holds that: 
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ERISA empowers the Secretary of Labor to “prescribe such regulations as 

he finds necessary or appropriate to carry out” the statutory provisions 

securing employee benefit rights.... If the Secretary of Labor found it meet 

to adopt a treating physician rule by regulation, courts would examine that 

determination with appropriate deference.

As the Supreme Court observed in Nord, Social Security already utilizes the treating 

physician rule for determinations of disability. 20 C.F.R. 404.1527(c)(2). And DOL’s 

2011 rule on urgent care determinations already requires deference to the treating 

physician’s opinion on whether a claim is for urgent care. 76 F.R. 37212; 29 C.F.R. 

2590.715-2719(b)(2)(ii)(B). Accordingly, the Department’s final regulations should 

provide that in any benefit claim involving issues of medical judgment, the Plan 

administrator and the named fiduciary responsible for reviewing adverse benefit 

determinations should defer to the opinions of the claimant’s treating physician. This is 

the only effective counter to the bias of medical reviewers hired by insurance companies.

The related authority against bias that the Department has never fully utilized is 

the authority to clarify the scope of ERISA preemption in the context of insurance claims. 

The Department’s 2000 regulations address preemption by providing that State insurance 

laws on processing benefit claims and denials are not superseded unless they “prevent[] 

the application of a requirement of the regulation.” 65 F.R. 70254 (Nov. 21, 2000); 29 

C.F.R. 2560.503-1(k). The Department should clarify that the phrase “law of any State 

which regulates insurance” in ERISA §514(b) includes state insurance laws and state 

laws and judicial decisions of general application relating to the processing of insurance

claims, including notice-prejudice rules, and to bad faith denials of claims under 

insurance policies or contracts. Those State laws and decisions should only be preempted 

if their enforcement prevents the application of an ERISA regulation.

The proposed regulation on conflicts also needs clarification in four areas:

First, the proposed regulation should make clear that impartiality must be ensured, 

even where the plan, itself, is not directly responsible for hiring or compensating the 

individuals involved in deciding or reviewing a claim. This clarification is necessary 

because plans frequently delegate the selection of experts to third-party vendors who, in 

turn, employ the experts. 

Second, clarification is needed concerning which individuals are “involved.”

Claims administrators often protest that physicians, or other consulting experts, were not 

“involved in making the decision” but merely supplied information (such as an opinion 

on physical restrictions and limitations) that the claims adjudicator considered. Under this 
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logic, plans may argue that consulting experts are not affected by the impartiality 

regulation. The 2000 regulations on consulting experts should be used to clarify which 

individuals are “involved.”

Third, the proposed regulation should make unmistakable that it is not only claims 

adjudicators and physicians who must be impartial. Vocational experts and accountants 

are also frequently consulted in the claims process and should be included in the scope of 

the impartiality requirement. 

Fourth, the proposed regulation should address mixed motives for using an 

individual by making clear that if the conflict plays any part in the decision to retain, hire, 

or compensate the claims handler or other expert, the decision violates the regulations.

2. Improvements to Basic Disclosure Requirements

The 2011 ACA regulations require notices to claimants in non-grandfathered 

health plans to offer additional content, which the Department has now proposed be 

extended to disability benefits. Specifically, the ACA regulations provide that: 

 Any notice of adverse benefit determination or final internal adverse 

benefit determination must include information sufficient to identify 

the claim involved, the claim amount, the date of any service (if 

applicable), and, on request and if applicable, any diagnosis code 

and its corresponding meaning and any treatment code and its 

corresponding meaning.

 The plan or issuer must ensure that the reason or reasons for an 

adverse benefit determination or final internal adverse benefit 

determination includes any classification or denial code and its 

corresponding meaning, as well as a description of the plan’s or 

issuer’s standard, if any, used in denying the claim. In the case of a 

final internal adverse benefit determination, this description must 

also include a discussion of the decision. 

 The plan or issuer must disclose the availability of, and contact 

information for, any applicable office of participant/consumer 

assistance. 

76 F.R. 37212-13; 29 C.F.R. 2590.715-2719(b)(2)(ii)(E)(1)-(4). 
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The proposed regulation on disability benefits would amend the current disclosure 

requirements in three significant respects, each of which is addressed below.

a. Discussion of the Decision and Its Relationship to SSDI or other 

Disability Awards 

The proposed regulation for disability benefit claims requiring the claims 

administrator to meaningfully discuss and distinguish the views of treating physicians or 

other entities that are paying benefits, proposed 2560.503-1(g)(1)(vii)(A), will be helpful

in addressing arbitrary, but unfortunately common practices. See, e.g., McDonough v. 

Aetna Life Ins. Co., 783 F.3d 374, 382 (1st Cir. 2015) (“Aetna’s failure to articulate the 

contours of the own occupation standard, apply that standard in a meaningful way, and 

reason from that standard to an appropriate conclusion regarding the appellant’s putative 

disability renders its benefits-termination decision arbitrary and capricious”). Generally, 

if an administrator pays any attention to contrary opinions, the attention is in the form of 

boilerplate paragraphs in the denial letters. Reasons and evidence that is favorable to the 

claimant are often ignored. Claimants are thereby hampered in responding, which stands 

in the way of full and fair review. Sometimes courts do not understand the difference 

between these boilerplate paragraphs and the type of explanation mandated by ERISA. 

The regulations should be clarified to ensure that it will change reliance on this sort of 

explanation or a failure to address contrary evidence. 

The proposed regulation requiring a discussion about the difference between the 

plan’s decision and awards made by other systems, such as Social Security, should also 

be expanded to explain how deference has been accorded to the decision of the Social 

Security Administration. As a model, the regulation could utilize the language in 

regulatory settlement agreements reached by insurers and state insurance commissioners 

in response to concerns about disability claims processes by insurers like UNUM. For 

example, in the regulatory settlement agreement UNUM is required to follow, this 

language was used:

The Companies must give significant weight to evidence of an award of Social 

Security disability benefits as supporting a finding of disability, unless the 

Companies have compelling evidence that the decision of the Social Security 

Administration was (i) founded on an error of law or an abuse of discretion, (ii) 

inconsistent with the applicable medical evidence, or (iii) inconsistent with the 

definition of disability contained in the applicable insurance policy.
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b. Disclosure of Internal Rules

The DOL’s proposed regulation regarding disclosure of the internal rules or 

criteria used to make a disability benefit decision, proposed 2560.503-1(g)(1)(vii)(B), is 

helpful because internal rules, guidelines, protocols, standards, claims manuals, and 

similar materials often create hidden plan terms that the claimant is unable to learn of in 

order to address them in the appeal. As in the healthcare context, plans sometimes argue 

that internal criteria are proprietary or confidential. Keeping the rules that are used to 

administer a plan a secret is inconsistent with the most basic promise of ERISA: Benefits 

must be administered “in accordance with the documents and instruments governing the 

plan.” 29 U.S.C. §1104. 

Much litigation will be avoided if the claimant knows from the outset what criteria 

he or she needs to meet in an appeal. See e.g., Cook v. New York Times Co. Long-Term 

Disability Plan, 2004 WL 203111, at *10 (S.D.N.Y. Jan. 30, 2004); Craig v. Pillsbury, 

458 F.3d 748, 754 (8th Cir. 2006) (decrying the use of “double-secret” plan terms); 

Samples v. First Health Group Corp., 631 F. Supp. 2d 1174, 1183 (9th Cir. 2007). This 

requirement will also promote the dialogue between claimant and plan that ERISA 

contemplates. Booten v. Lockheed Med. Ben Plan, 110 F.3d 1461, 1463 (9th Cir. 1997)

(“in simple English, what this regulation calls for is a meaningful dialogue between 

ERISA plan administrators and their beneficiaries”).

To fulfill the requirement that “the claims procedures contain administrative 

processes and safeguards designed to ensure and to verify that ... plan provisions have 

been applied consistently with respect to similarly situated claimants,” 29 C.F.R. 

2560.503-1(b)(5), the regulation should also make clear that the Plan administrator must 

maintain records of claims for benefits that have been granted or denied, indexed by plan 

provision and subject matter, in a manner that allows claimants to have access to the 

documents, records or other information that were submitted, considered, or generated in 

making other benefit determinations. 

c. Notice of Right to Request Relevant Documents

DOL is to be commended for clarifying that “relevant” documents must be 

produced with the initial denial of a claim, and not just with the denial of an appeal. The 

regulation concerning notice of the right to request relevant documents contained in 

proposed 2560.503-1(g)(1)(vii)(C) is an improvement since it was formerly omitted from 

the regulation on the contents of initial denials. Compare 29 C.F.R. 503-1(g)(1) with

503-1(h)(2)(iii) and (j)(3). It would be helpful to claimants, however, to include the 

words “claim file,” which is plain language and consistent with the amendment at 29 
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C.F.R. 2560.503-1(h)(4)(i) [proposed regulation]. Attorneys may understand the 

language of (g)(1)(vii)(C), but lay persons, who are often unrepresented at the claims 

stage, may not realize what rights are given here. The regulations should also expressly 

reject court decisions that require claimants to prove prejudice to obtain their claim file. 

See, e.g., DiGregorio v. Hartford Comprehensive Employee Benefit Serv. Co., 423 F.3d 

6, 15-17 (1st Cir. 2005).

29 C.F.R. 2560.503-1(g)(1)(iii) already requires the “description of any additional 

material or information necessary for the claimant to perfect a claim.” The proposed 

regulations should reiterate this requirement and connect it with the production of 

“relevant” documents. This is consistent with the principle that “the claims process must 

be collaborative not adversarial, especially in light of the fact that claimants must often 

proceed without the aid of legal counsel.” Harrison, 773 F.3d at 24; accord, Booton v. 

Lockheed Medical Benefit Plan, 110 F.3d 1461, 1463 (9th Cir. 1997). The Department’s 

proposed regulations should also define the information necessary to “perfect” a claim to 

mean the “relevant” material or information for the participant or beneficiary to take 

action and turn the claim into a successful claim.4

The regulations should also make clear that a full and fair review requires plan 

administrators and named fiduciaries to gather and consider the readily available 

evidence and relevant plan terms that might confirm eligibility. See, e.g., Harrison v. 

Wells Fargo Bank, 773 F.3d 15, 21-22 (4th Cir. 2014); Gaither v. Aetna Life Ins. Co., 394 

F.3d 792, 807 (10th Cir. 2004). The Department of Labor has specifically adopted this 

position in its amicus brief in the Harrison v. Wells Fargo Bank litigation. 

3. Right to Review and Respond to New Information Before Final Decision

The 2011 ACA regulations clarified that plans and issuers are required to provide 

claimants (free of charge) with new or additional evidence considered, relied upon, or 

generated by the plan or issuer in connection with a claim, as well as any new or 

additional rationale for a denial at the internal appeals stage, in time for the claimant to 

have a reasonable opportunity to respond to such new evidence or rationale. 75 F.R.

 

4

 Comparable to the identification of any applicable office of participant/consumer 

assistance for help with a non-grandfathered health benefit denial at 29 C.F.R. 2590.715-

2719(b)(2)(ii)(E)(4), the denial letter for a disability claim should also notify participants 

or beneficiaries that they have the right to be represented in the administrative appeal 

process, and that in addition to private attorneys there are regional EBSA offices and 

other agencies that may help. The Social Security Administration already does this.
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43333; 29 C.F.R. 2590.715-2719(b)(2)(ii)(C). This rule reversed Midgett v. Washington 

Group Int’l Long Term Disability Plan, 561 F.3d 887, 896 (8th Cir. 2009), and similar 

decisions5 which have denied claimants the opportunity to review and rebut medical 

opinions generated during the appeal. 75 F.R. 43333.6

Obviously, the DOL wishes to improve things for disability claimants who have 

been sandbagged by new rationales or evidence during review on appeal. Sandbagging 

has been a persistent problem in the ERISA appeals process and some courts have voiced 

their disapproval of such “gamesmanship.” In Abram v. Cargill, 395 F.3d 882, 886 (8th 

Cir. 2005), the court articulated the problem as follows:

[w]ithout knowing what “inconsistencies” the Plan was attempting to 

resolve or having access to the report the Plan relied on, Abram could not 

meaningfully participate in the appeals process. . . This type of 

“gamesmanship” is inconsistent with full and fair review. 

Id. Given that it is often difficult for a claimant to supplement the record in litigation, the 

proposed change offers some assurance that a claimant will be able to contribute his or 

her relevant evidence to the record that the court will review. There is, however, a 

countervailing consideration that while the opportunity to submit proof to the plan is 

offered, the time for processing the claim will be extended without benefit payments. 

Claimants cannot continue a process ad nauseum while they need to pay their mortgages 

and feed their families. A second consideration is that while the claimant may be ready to 

respond in a matter of days, the type of evidence needed to respond to new evidence or 

rationale offered by the plan may require hiring an expert or asking for another report 

from a physician, psychologist, or vocational consultant. To allow claimants to respond 

while limiting the time added to the process, claimants should have at least 60 days to 

respond to new evidence or rationales provided by the plan on appeal, with a 60 day 

extension if there are special circumstances.

 

5 Metzger v. UNUM Life Ins. Co., 476 F.3d 1161, 1167 (10th Cir. 2007), Glazer v. 

Reliance Standard Life Ins. Co., 524 F.3d 1241, 1245-46 (11th Cir. 2008), Killen v. 

Reliance Standard Life Ins. Co., 776 F.3d 303, 310-311 (5th Cir. 2015).

6

In addition to the Department’s rejection of Midgett, the reasoning of the 

decision has been rejected in Grossmuller v. Auto Workers, 715 F.2d 853, 858 (3d Cir. 

1982), Halpin v. W.W. Grainger, Inc., 962 F.2d 685, 696 (7th Cir. 1992), and Saffon v. 

Wells Fargo & Co. Long Term Disability Plan, 522 F.3d 863, 871-72 (9th Cir. 2008).
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There is also some uncertainty about what the new regulations contemplate by 

“testimony.” In the regulatory preamble, the DOL states: “the proposal would also grant 

the claimant a right to respond to the new information by explicitly providing claimants 

the right to present evidence and written testimony as part of the claims and appeals 

process.” But the proposed regulation says: “[the processes for disability claims must] 

allow a claimant to review the claim file and to present evidence and testimony as part of 

the disability benefit claims and appeals process.” Proposed 2560.503-1(h)(4)(i). The 

current regulation, by comparison, provides that “[the process must] provide claimants 

the opportunity to submit written comments, documents, records, and other information

relating to the claim for benefits.” 29 C.F.R. 2560.503-1(h)(ii)(2)[current regulation].

The inconsistencies between the preamble and the proposed regulation and the 

current regulation could lead to disagreements over what the intended change is and 

whether the proposed regulation contemplates the right to a hearing with live testimony. 

The proposed regulation’s language about “evidence and testimony” could be interpreted 

to contemplate courtroom evidentiary standards for claimants submitting proof of their 

claim – something that is not normally applied in the ERISA context. Some plans are in 

a position to observe rules of evidence as they have in-house counsel and other legal 

resources to rely upon to assure compliance, while others are not. And claimants who are 

not represented by counsel are not prepared to deal with courtroom evidentiary standards. 

The Department needs to make clear that it is not curtailing or narrowing the types of 

information that claimants may submit to the administrator. 

Under the current regulation, claimants sometimes submit testimony in the form of 

an audio or video CD. This is particularly useful in cases where the claimant cannot 

write so that a written statement is difficult or impossible. It is also helpful in those cases 

where seeing and hearing the claimant may be important. The reference to “written 

testimony” in the preamble might give plans the ammunition to disallow any audio or 

video submissions on the grounds that these forms of evidence do not represent “written 

testimony.” The proposed regulation should make clear that it is not intended to put 

claimants in a worse position than they face at present. 

A related issue is the opportunity for the claimant to supplement the record even 

when the plan maintains that it has not changed its rationale or offered new evidence. 

Many meritorious disability claims are denied and affirmed by the courts based on the 

scope of the record on review before the court. For instance, Social Security Disability 

Insurance decisions, which are the focus of some of the proposed rules, are often crucial 

to proving disability claims. However, SSA is notorious for takin g along time to reach

its decisions and a favorable SSA ruling may come after the final denial on appeal of the 

disability plan. This is true as well for other kinds of favorable medical and vocational
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evidence. Even where it would not be a problem to do so, plan administrators often 

refuse to consider this type of evidence, choosing instead to shut the door on a 

meritorious claim. There is a clear solution to this which tracks the Fifth Circuit’s en 

banc holding in Vega v. National Life Ins. Serv., Inc., 188 F.3d 287, 300 (5th Cir. 1999), 

where the Court wrote:

We hold today that the administrative record consists of relevant 

information made available to the administrator prior to the complainant’s 

filing of a lawsuit and in a manner that gives the administrator a fair 

opportunity to consider it. Thus, if the information in the doctors’ affidavits 

had been presented to National Life before filing this lawsuit in time for 

their fair consideration, they could be treated as part of the record. 

Furthermore, in restricting the district court’s review to evidence in the 

record, we are merely encouraging attorneys for claimants to make a good 

faith effort to resolve the claim with the administrator before filing suit in 

district court; we are not establishing a rule that will adversely affect the 

rights of claimants.

Id. In light of Vega’s holding, the proposed regulation on responding to new rationales 

should require the plan administrator to accept and review a claimant’s evidence and treat 

it as part of the record, so long as it is sent in time for the administrator to consider the 

evidence before litigation is commenced.

4. Deemed Exhaustion of Claims and Appeals Processes

Shortly after ERISA became effective, courts implied a requirement to exhaust 

internal claims and appeals procedures based on ERISA §503’s provision for “full and 

fair review.” See, e.g., James A. Wooten, A Reflection on ERISA Claims Administration 

and the Exhaustion Requirement, 6 Drexel L. Rev. 573, 579-81 (2014). Because Congress 

specifically assigned the authority to interpret this section of ERISA to DOL, the DOL 

has not only the authority, it has the responsibility to issue regulations governing any 

exhaustion requirement associated with a “full and fair review.”

The Department’s 1977 regulations provided that a claim would be deemed 

exhausted if “the decision on review is not furnished within” the appropriate time period. 

29 C.F.R. 2560.501(h)(4). The preamble to DOL’s 1998 proposal expanded on this by 

stating that “claimants should not be required to continue to pursue claims through an 

administrative process that fails to meet the minimum standard of the regulation.” 63 F.R. 

48397. This “specif[ied] more clearly the consequence that the Department believes flow 

from a failure to provide procedures that meet the minimum regulatory standards.” Id. 
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The 2000 regulation on deemed exhaustion has generally been followed. See, e.g., 

Nichols v. Prudential Ins. Co., 406 F.3d 98, 106-08 (2d Cir. 2005) (“failure to adhere 

literally to the regulatory deadlines renders the claimant’s administrative remedies 

exhausted by operation of law”). But some courts have held that deemed exhaustion will 

not apply if there is substantial compliance and the claimant does not establish prejudice 

or substantive harm. See, e.g., Holmes v. Colo. Coalition for the Homeless Long Term 

Disability Plan, 762 F.3d 1195, 1212-13 (10th Cir. 2014) (citing other cases).

The interim final ACA regulations in 2010 provided that if a plan or issuer “fails 

to strictly adhere to all the requirements of the internal claims and appeals process with 

respect to a claim, the claimant is deemed to have exhausted the internal claims and 

appeals process, regardless of whether the plan or issuer asserts that it substantially 

complied with these requirements or that any error it committed was de minimis.” 75 

F.R. 43334. This reflected the Department’s “continu[ed] belief that claimants should not 

have to follow an internal claims and appeals procedure that is less than full, fair, and 

timely.” 76 F.R. 37213. The final ACA regulation, however, allowed an exception for 

“errors that are minor and meet certain other specified conditions.” 76 F.R. 37213. Under 

that final regulation, if a plan or issuer “fails to adhere to all the requirements” of the 

internal claims and appeals process, a claimant is “entitled to pursue any available 

remedies under section 502(a) of ERISA or under State law,” except in the case of a “de 

minimus violation.” 76 F.R. 37213; 29 C.F.R. 2590.715-2719(b)(2)(ii)(F). To qualify for 

the exception, the error must not only be de minimus, but it must be non-prejudicial, 

attributable to “good cause or due to matters beyond” the plan’s or issuer’s control, not 

reflective of a “pattern or practice” of non-compliance, and be made in the context of an 

“ongoing, good faith exchange of information.” Id. The plan or issuer must provide an 

explanation of the basis for asserting that the non-compliance is subject to this exception 

upon written request of the claimant. Id. 

The final 2011 ACA regulation on deemed exhaustion, including the exception for 

a de minimus violation, should be adopted (and should be extended to all employee 

benefits, including grandfathered group health benefits). To avoid unnecessary litigation 

issues, however, the Department should illustrate what “minor errors” are (and are not)

and address the impact of more than one minor error.

There are also three areas that could be improved in the proposal: 

First, the Department’s regulations should make it very clear that this rule is not 

subject to any exception for “substantial” compliance. Nor should forfeiture of deferential 

review be confined to “flagrant violations” of the Department’s benefit claims regulations 

with “flagrant” to be defined by the courts, contrary to Gatti v. Reliance Standard Life 
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Ins. Co., 415 F.3d 978, 985 (9th Cir. 2005). 

Second, the standard of judicial review that will apply requires clarification to 

address a potential inconsistency between the preamble and the proposed regulation. The 

preamble says: “in those situations when the minor errors exception does not apply, the 

proposal clarifies that the reviewing tribunal should not give special deference to the 

plan’s decision, but rather should review the dispute de novo.” However, the regulation 

says: “if a claimant chooses to pursue remedies under section 502(a) of ERISA under 

such circumstances, the claim or appeal is deemed denied on review without the exercise 

of discretion by an appropriate fiduciary.” Proposed 2560.503-1(l)(2)(i). It can be 

expected that, without clarification, some plans will argue that the italicized language in 

the regulation does not require a court to affirmatively exercise de novo review. The 

Department should clarify its intent. The Department should also clarify that de novo 

review includes factual determinations as well as the application of plan provisions to

facts.

Third, the proposed regulation on deemed exhaustion should be clarified to ensure 

that the provision applies to both claims and appeals, not just the initial claim review. If 

there is a violation of the regulations, the claimant can seek review regardless of whether 

the claim is in the “claim” or the “appeal” stage.

5. Coverage Rescissions—Adverse Benefit Determinations

The 2011 ACA regulations make clear that adverse benefit determinations include

a rescission of coverage (whether or not the rescission has an adverse effect on any 

particular benefit at the time). This definition is broader than the definition in the 2000 

regulations, which provided that a denial, reduction, or termination of, or a failure to 

provide payment (in whole or in part) for a benefit is an adverse benefit determination 

eligible for internal claims and appeals processes. 75 F.R. 43332; 29 C.F.R. 2590.715-

2719(a)(2)(i) and (b)(2)(ii)(A). Continued coverage is also required pending the outcome 

of an internal appeal. 75 F.R. 43334; 29 C.F.R. 2590.715-2719(b)(2)(iii). 

The proposed regulation should make clear that a rescission includes any

recoupment claim by the plan sponsor or issuer based on overpayments or subrogation. 

The regulation should also make clear that an adverse benefit determination includes an 

adverse decision on coverage. It is possible that the definition of “rescission” in 

proposed 2560.503-1(m)(4)(ii) is not sufficient to cover the situation where the plan 

asserts that coverage never existed in the first place. 

The proposed language about treating rescissions as adverse benefit 
Comments on Claims Procedure - 26 - January 19, 2016

 for Disability Benefits

determinations should also be expanded to address the situation where an insurer defers

the right to appeal until the date that benefits end, which imposes significant economic 

hardship on claimants who may be deprived of benefits for several months while appeals 

proceed. The claimant should have the option to appeal that determination immediately

to avoid economic hardship.

6. Culturally and Linguistically Appropriate Notices

The “average plan participant” standard in ERISA §102 has never referred to the 

understanding of a single participant but is based on “typical participants in the plan.” 29 

C.F.R. 2520.102-2(a). The SPD regulations already require assistance if “10% or more of 

all plan participants [in a plan with 100 or more participants] are literate only in the same 

non-English language.” 29 C.F.R. 2520.102-2(c). 

The ACA required notices to be provided in a culturally and linguistically 

appropriate manner, which was spelled out further in paragraph (e) of the final 

regulations. 76 F.R. 37213-14; 29 C.F.R. 2590.715-2719(b)(2)(ii)(E). To reflect our 

nation’s diverse workforce and make notices understandable to the “average plan 

participant,” the ACA’s rule should be extended to all employee benefits.

The Department clearly has authority to update the notice requirements consistent 

with the ACA’s rules. But the Department should clarify that the protection applies 

whether the plan or the county meets the 10% standard. As drafted, the proposed 

regulation might reduce the protection in instances where 10% of the plan but not 10% or 

more of the residents of a county are literate only in the same non-English language.

* * * *

I appreciate the opportunity to present these comments on the proposed 

regulations. If you have any questions or want me to do anything more, please contact me 

at 202-289-1117. Thank you.

Sincerely,

Stephen R. Bruce

Attachments 1 and 2
WRITTEN CONSENT OF THE BOARD OF DIRECTORS OF EXELIS INC. 

The undersigned, being all ofthe directors (each, a "Director") of the Board of Directors (the 

"Board") ofExelis Inc, (the "Corporation'), an Indiana corporation, hereby waive the giving of 

any and all notice of the holding of a meeting ofthe Directors, and acting in lieu of a meeting 

pursuant to § 23-1-34-2 of the Indiana Business Corporation Law, hereby unanimously consent 

to, adopt and approve the following resolutions and the actions taken thereby~ and a copy of this 

unanimous written consent (the "Unatlitnous Written Consent") hereby is ordered to be filed 

with the minutes of the proceedings of the Board: 

WHEREAS, the Corporation heretofore has adopted and maintains (i) the Exelis Salaried 

Retiree .Life Insurance Plan on behalf of certain retirees of the Corporation and its subsidiaries or 

predecessors thereto (the "Salaried Plan") and (ii) life insurance arrangements on behalf of 

certain retirees and ce1iain disabled former employees ofthe Corporation's Space Systems 

Division or predecessors thereto, including Eastman Kodak Company, which arrangements 

include without limitation the Kodak Group Life Insurance/Survivor Benefit Insurance Pian, the 

Kodak Family Protection Program, the Kodak Supplementary Group Life Insurance Plan, the 

Kodak Life Insurance Plan and the Kodak Life Insurance Plus Plan (collectively, the "SSD Plan" 

and with the Salaried Plan, the "Plans" and individually, a "Plan"); 

WHEREAS, the Board desires to amend the Plans in various respects, effective as of the date 

hereof; and 

W.HEREAS, the Board desires to terminate the Plans, effective as of January 1, 2016. 

Plan Amendment 

NOW, THEREFORE, BE IT RESOLVED, that effective as of the date hereof: the Salaried 

Plan hereby is amended to add the following provisions (collectively, the "Legal Action 

Provisions") to page 12 of the ITT Salaried Retiree Life Insurance Plan Summary Plan 

Description, dated January 1,2010 (which document serves, in part, as the official plan 

document for the Salaried Plan, provided that effective October 31, 2011, all references therein 

to the plan sponsor, plan administra,tor or entity with amendment and termination authority shall 

be deemed to be references to the Corporation): 

Applicable Law and Venue 

This plan and all rights hereunder shall be governed by and coustrued in 

accordance with the laws of the State ofFlorida (without regard to principles of 

conflicts of law) to the extent such laws have not been preempted by applicable 

federal law. The exclusive venue for any action arising under this plan shall be in 

the United States District Courtfbr the Middle District of Florida. 

ATTACHMENT 1 

EXELIS RESOLUTION
Limitation Period fm· Actions Involving the Plan 

Except for claims to which the periods prescribed by section 413 of the Employee 

Retirement Income Security Act of 1974, as amended ("ERISA") apply, (a) no 

legal or equitable action under section 502 ofERISA (including an action that 

could have been brought under section502 of ERISA) may be commenced later 

than one year after the date the claimant receives a final decision in response to 

the claimant's request for review of an adverse benefit determination under this 

plan's administrative claims and appeals procedure ( orif later, November 1, 

2016) and (b) no legal or equitable action (including a legal or equitable action 

under section 502 of ERISA) involving this plan may be commenced later than 

two years after the date the pei'son bringing an action knew, had or was provided 

notice, or otherwise had reason to know, ofthe circumstances giving riseto the 

action (or iflater, November 1, 2017). Notwithstanding the foregoing~ in no 

event shaH the filing of a claim or appeal under this plan's administrative claims 

and appeals procedure toll, delay, or otherwise impact in any manner the running 

of the time period set fcnth in provision (b) above or the time periods prescribed 

by section 413 of ERISA. Tlus provision shall not bar the plan or its fiduciaries 

from (x) recovering overpayments ofbenetlts or other amounts incorrectly paid to 

any person under this plan at any time or (y) bringing any legal or equitable action 

against any party, 

Legal Fees 

Any award of legal fees in connection with an action involving this plan shall be 

calculated pursuant to a method that results in the lowest an1ount of fees being 

paid, which amount shall be no more than the amount that is reasonable. In no 

event shall legal fees be awarded for work related to: (a) administrative 

proceedings under this plan; (b) unsuccessful claims brought by a participant or 

any other person; or (c) actions that are not brought under ERISA. In calculating 

any award of legal fees, there shall be no enhancement for the risk of contingency, 

nonpayment or any other risk, nor shall there be applien a contingency multiplier 

or any other multiplier. In any action brought by a pa1iicipant or any other petson 

against this plan, any current or former committee or other body tasked with 

administering this plan, any current or former fiduciary of this plan, the Company 

m· any oftheir current or former affiliates or their or their. current or former 

affiliates' respective officers, directors, trustees, employees, ot agents (cunent or 

former) (collectively, the "Plan Pruiies"), legal fees of the Plan Parties in 

connection with such action shall be paid by the participant or other person 

bringing the action, unless the court specifically finds that there was a reasonable 

basis for the action. 

FURTHER RESOLVED, that effective as of the date hereof, the SSD Plan hereby is amended 

to add the Legal Action Provisions to its official plan document (whether in the form of a 

sttmmary plan description, cettificate of insurance, combination thereof or otherwise); 

2 
FURtHER RESOLVED, that to the extent that any provision of the Plans is inconsistent with 

the Legal Action Provisions, the Legal Action Provisions shall supersede such inconsistent 

provision with respect to legal or equitable claims filed against any person or entity other than 

the company underwriting an insurance policy under which a benefit under a Plan may be 

payable. In the event that a legal m· equitable claim is asserted against both (i) an insurance 

company underwriting such a policy and (ii) any other person or entity, the Legal Action 

Provisions shall supersede such inconsistent provision with respect to the claim asserted against 

such other person or entity, and the inconsistent provision shall apply solely to the extent the 

claim is asserted against such insurance company; 

Plan Tetmination 

FURTHER RESOl..VED, that effective as of January 1, 2016, the Plans hereby are terminated, 

such that no benefit (whether a basic life, supplemental life, optional life, dependent life or 

survivor income benefit or otherwis~) shall be payable under the Plans upon the death of a retiree 

or disabled former employee (whether a retiree or disabled former employee as ofthe date hereof 

or an active employee as of the date hereof who subsequently terminates employment from the 

Corporation and its subsidiaries) occurring after December 31, 2015; provided, however. that for 

the avoidance of doubt, this provision inno event shall be interpreted to limit ~my conversion 

rights which may inure to a retiree or disabled former employee under any insurance policy 

maintained in connection with a Plan; and 

General 

FURTHER RESOLVED, that all corporate actions and all actions taken by the officers, 

directors or other authorized agents of the Corporation, or any of them, in cormection with the 

foregoing resolutions, whether taken before or after the effective dates of those resolutions, 

hereby are approved, ratified and confirmed as the duly authorized acts of the Corporation. 

This Unanimous Written Consent may be executed in one or more counterparts, each ofwhich 

shall be deemed an original and all of which together shall constitute one and the same 

Unanimous Written Consent. A facsimile or electronic mail transmission of a counterpart hereof 

bearing the signature ofa Director will be legal and binding upon that Director. 

{SIGN:ATURE PAGE FOLLOWS] 

3 
IN WITNESS WHEREOF, the undersigned) being all of the Directors of the Corporation, have 

executed this Unanimous Written Consent as oftlris ~day ofNovember, 2015. 

ACTION WITH RESPECT TO 

CERTAIN RETIREE LU'E INSURANCE ARRANGEMENTS 

4 
YOU & KODAK

Benefits Handbook 

ATTACHMENT 2

KODAK SPD
1 GENERAL PLAN INFORMATION

5 GLOSSARY OF TERMS

BENEFIT SUMMARIES

Security for Today

13 Flexible Benefits Program

Health Care

21 Medical

35 Prescription Drugs

45 Dental

55 Health Care Reimbursement Account/

Limited Flexible Spending Account

67 Dependent Care Reimbursement Account

Life Insurance

73 Employee Life Insurance

83 Dependent Life Insurance

93 Accidental Death Insurance

101 Dependent Accidental Death Insurance

111 Occupational Accidental Death Insurance

115 Short-Term Disability

125 Workers’ Compensation

131 Long-Term Disability

139 Termination Benefits

Planning for the Future

	 Retirement

149 Kodak Retirement Income Plan

173 Savings & Investment Plan

Balancing Work and Life

187 Holidays

191 Vacation

195 Vacation Buy

199 Adoption Assistance

201 Employee Assistance

205 CLAIMS AND APPEALS PROCEDURES

221 INDEX

TABLE OF CONTENTS
CLAIMS AN APPELS PROCEDUR

CLAIMS AND 

APPEALS 

PROCEDURES

CLAIMS AND APPEALS PROCEDURES

CLAIMS AND APPEALS PROCEDURES

I N T H I S S E C T I O N 

205 Introduction 

205 Filing Claims

205 — Steps to Take

206 — Type of Claim

207 — Deadlines for Filing Claims

210 Initial Claims Determination

210 — Routine Claims

213 — Other Claims 

213 Appeals

213 — How to File an Appeal

215 — Claims Reviewer 

215 — Appeals Involving Routine Claims

217 — Appeals Involving Other Claims

218 — External Review for KMAP and KRx Claims

219 Limits on Legal Actions

220 — Attorney’s Fees

Introduction

This summary describes the administrative 

procedures used to file and process claims and 

appeals pertaining to the benefit plans described in 

this handbook. You must follow these administrative 

procedures before you can bring a lawsuit to 

challenge a decision or action taken under a plan 

(including, without limitation, a claim denial, a plan 

procedural rule or a plan amendment).

The plan administrator of a plan generally has 

decision-making authority with respect to that 

plan’s claims and appeals. The plan administrator’s 

authority is fully discretionary in all matters related 

to the discharge of his or her responsibilities and 

the exercise of his or her authority under the plan 

including, without limitation, his or her construction 

of the terms of the plan, his or her determination of 

eligibility for coverage or benefits, the interpretation 

and application of legal requirements and precedents, 

and whether or not to compel binding or non-binding 

arbitration or mediation. Under some plans, the plan 

administrator has delegated his or her authority to 

a claims administrator or another person or entity. 

In this summary, the term “claims reviewer” is used 

to refer to the plan administrator or other person or 

entity with decision-making authority under a plan 

with respect to that plan’s claims and appeals.

It is the intent of each plan that the decisions of 

the plan administrator (or the party to whom the 

decision-making authority was delegated), and his or 

her actions with respect to the plan, will be conclusive 

and binding upon all persons having or claiming to 

have any right or interest in or under the plan, and 

that no such decision or action will be modified by a 

court unless such decision or action is proven to be 

arbitrary or capricious.

The plan administrator for all benefit plans except 

those listed below is the Director, Global Benefits 

and Employee Services, Eastman Kodak Company, 

343 State Street, Rochester, New York 14650-0901 

(telephone number: 585-724-4800)

Benefit Plan Plan Administrator

Kodak Retirement 

Income Plan

Kodak Retirement 

Income Plan Committee 

(KRIPCO)

Eastman Kodak 

Employees’ Savings and 

Investment Plan

Savings and Investment 

Plan Committee (SIPCO)

Communications with the above committees should 

be addressed in care of the Director, Global Benefits 

and Employee Services, at the above address.

Filing Claims

Under each benefit plan, a claimant must follow 

the claims procedure in order to receive benefits or 

challenge any aspect of the plan or plan administration. 

In this summary, the “claimant” may be you, one 

of your covered Dependents, or your beneficiary, 

depending on the plan. In order to keep this summary 

as easy to read as possible, this summary generally 

uses the words “you” and “your” to refer to the 

claimant. All such references extend to participants, 

Dependents and beneficiaries, regardless of who is 

actually reading this summary or filing the claim.

Steps to Take: If you have a claim, you should take the 

following steps:

Initial Claim:

1. Identify the plan or plans involved.

2. Consult the benefit summary for the plan(s) found
206 CLAIMS AN APPELS PROC

CLAIMS AND 

APPEALS 

PROCEDURES

elsewhere in this handbook and this section 

to determine what rules apply to the filing of

 your claim.

3. Identify the type of claim involved

(see “Type of Claim”).

4. Identify the deadline for filing your claim

(see “Deadlines for Filing Claims”).

5. Determine how and where to file your claim (see

“Brief Overview of Plan-Specific Claim Rules”).

6. File the claim by the deadline, following the

procedures set forth in the relevant benefit

summary and this section.

7. If your claim is approved, the plan will take action

to pay or otherwise resolve your claim (depending

on the type of claim involved and the action your

claim requested).

8. If your claim is denied, review the explanation

provided by the claims reviewer and decide

whether you are satisfied with the reasons for the

denial or whether you wish to appeal. If you are

dissatisfied with the decision, you should take the

following steps:

Appeals:

1. If you decide to appeal a denied claim, determine

when, where and how to file your appeal

(see “Appeals”).

2. File your appeal by the deadline, following the

procedures set forth in the relevant benefit

summary and this section (see “How to File

an Appeal”).

3. If your appeal is approved, the plan will take action

to pay or otherwise resolve your claim (depending

on the type of claim involved and the action your

claim requested).

4. If your appeal is denied, review the explanation

provided by the claims reviewer and decide

whether you are satisfied with the reasons for

the denial or whether you wish to file a lawsuit

(or pursue other methods of dispute resolution, if

available or required under the plan).

Note: Some plans require two levels of appeal, in

which case you would repeat steps 2-4 if your first

appeal is denied.

5. If you decide to file a lawsuit, file your lawsuit by

the deadline in the Federal Court for the Western

District of New York in Rochester, New York, by the

deadline (see “Limits on Legal Actions”).

These steps are just a summary. They are explained at 

greater length in the following pages and the benefit 

summaries for the individual plans located elsewhere 

in this handbook. You should review this entire section 

and all of the plan benefits summaries carefully.

Type of Claim: Claims under Kodak’s benefit plans 

fall into one of two categories: “Routine Claims for 

Payment of Benefits” and “Other Claims.” 

A “Routine Claim for Payment of Benefits” is a claim 

that asserts that you are entitled to receive a specific 

payment under the terms of the Plan. 

Example 1: You are a participant in a Kodak dental plan 

and you incur an expense for covered dental care. You 

(or your dentist) would file a Routine Claim for Payment 

of Benefits. If the claim meets all of the dental plan’s 

requirements, the plan will pay the claim. 

Example 2: You are a participant in a Kodak life insurance 

plan and you die. Your beneficiary files a Routine Claim 

for Payment of Benefits seeking payment of your life 

insurance benefit. If the claim meets all the requirements 

of the life insurance plan, the plan will pay the claim. 

All claims that are not Routine Claims for Payment 

of Benefits (including, without limitation, claims 

about eligibility for plan coverage or the reduction 

or elimination of plan coverage or company 

contributions) are “Other Claims.” Under the Kodak 

Medical Assistance Plan, your appeal of a rescission 

of coverage is also treated as an Other Claim. 

A rescission of coverage means a cancellation 

or discontinuance of coverage that is effective 

retroactively and that is not due to a failure to 

timely pay required contributions toward the cost of 

coverage. You do not need to file a claim regarding 

a rescission of coverage. If you are notified by the 

plan administrator or his or her delegate that your 

coverage under KMAP or KRx is being rescinded, that 

notification is considered to be a claim denial and you 

may appeal the rescission within 180 days following 

your receipt of the notice of rescission of coverage. 

An appeal of a rescission of coverage is treated as an 

“Other Claim.”

Example 3: You are a participant in a Kodak life insurance 

plan. Kodak amends the plan to provide that smokers will 

be required to pay higher premiums than non-smokers. 

You want to file a claim objecting to the higher premiums. 

This is not a claim for a specific payment due to you or 

your beneficiary under the terms of the plan. Therefore, 

this is an “Other Claim.”
CLAIMS AN APPELS PROCEDUR

CLAIMS AND 

APPEALS 

PROCEDURES

Deadlines for Filing Claims: The amount of time that you have to file a claim may depend on the type of benefit 

and whether your claim is a “Routine Claim for Payment of Benefits” or an “Other Claim,” as described below:

Plan Name Routine Claims for Payment of Benefits Other Claims 

Accidental Death 

Insurance

Within 90 days of death, 

dismemberment or other covered 

injury, or within one year if it is 

unreasonable to submit such claim 

within 90 days. 

Within 60 days from the date you know or 

should have known that there is an issue, 

dispute, problem or other claim with respect 

to the plan. 

Dental Plan 

(Kdent) 

Within one year from the date the 

dental service was rendered. 

Within 60 days from the date you know or 

should have known that there is an issue, 

dispute, problem or other claim with respect 

to the plan. 

Dependent 

Accidental Death 

Insurance

Within 90 days of death, 

dismemberment or other covered 

injury, or within one year if it is 

unreasonable to submit such claim 

within 90 days. 

Within 60 days from the date you know or 

should have known that there is an issue, 

dispute, problem or other claim with respect 

to the plan. 

Dependent Care 

Reimbursement 

Account (DCRA) 

After covered services have been 

rendered, but prior to April 30th 

following the end of the calendar year 

in question. 

Within 60 days from the date you know or 

should have known that there is an issue, 

dispute, problem or other claim with respect 

to the plan. 

Dependent Life 

Plus Insurance 

Plan

Within one year from the date of death. Within 60 days from the date you know or 

should have known that there is an issue, 

dispute, problem or other claim with respect 

to the plan. 

Employee 

Assistance 

Program

Within 60 days from the date you know 

or should have known that there is an 

issue, dispute, problem or other claim 

with respect to your benefit. 

Within 60 days from the date you know or 

should have known that there is an issue, 

dispute, problem or other claim with respect 

to the plan. 

Flexible Benefits 

Plan

Within 60 days from the date that you 

know or should have known that there 

is an issue, dispute, problem or other 

claim with respect to your benefit. 

Within 60 days from the date you know or 

should have known that there is an issue, 

dispute, problem or other claim with respect 

to the plan. 

Health Care 

Reimbursement 

Account (HCRA) 

After covered services have been 

rendered, but prior to April 30th 

following the end of the calendar year 

in question. 

Within 60 days from the date you know or 

should have known that there is an issue, 

dispute, problem or other claim with respect 

to the plan. 

Life Insurance 

Plus Plan

Within one year from the date of death. Within 60 days from the date you know or 

should have known that there is an issue, 

dispute, problem or other claim with respect 

to the plan. 

(continued on next page)
208 CLAIMS AN APPELS PROC

CLAIMS AND 

APPEALS 

PROCEDURES

Plan Name Routine Claims for Payment of Benefits Other Claims 

Long-Term 

Disability 

Within one year after the earlier of 

(1) the date that you cease to be an 

STD Recipient or (2) the date your 

employment is terminated. 

Within 60 days from the date you know or 

should have known that there is an issue, 

dispute, problem or other claim with respect 

to the plan. 

Medical 

Assistance Plan 

Within one year from the date the 

health service was rendered, or if the 

claim involves inpatient care, within 

one year of the date of discharge. 

Within 60 days from the date you know or 

should have known that there is an issue, 

dispute, problem or other claim with respect 

to the plan. 

Occupational 

Accidental Death 

Insurance

Within one year from the date of death. Within 60 days from the date you know or 

should have known that there is an issue, 

dispute, problem or other claim with respect 

to the plan. 

Prescription Drug 

Plan (KRx) 

Within one year from the date the 

expense was incurred. 

Within 60 days from the date you know or 

should have known that there is an issue, 

dispute, problem or other claim with respect 

to the plan. 

Retirement Income 

Plan

Within one year from the earlier of (1) 

the date you become eligible for a plan 

distribution (whether or not you elect 

to receive one) or (2) the date you 

know or should have known that there 

is an issue, dispute, problem or other 

claim with respect to your benefit. 

Within one year from the earlier of (1) 

the date you become eligible for a plan 

distribution (whether or not you elect to 

receive one) or (2) the date you know or 

should have known that there is an issue, 

dispute, problem or other claim with respect 

to your benefit. 

Savings and 

Investment Plan

Within one year from the earlier of (1) 

the date you become eligible for a plan 

distribution (whether or not you elect 

to receive one) or (2) the date you 

know or should have known that there 

is an issue, dispute, problem or other 

claim with respect to your benefit. 

Within 60 days from the date you know or 

should have known that there is an issue, 

dispute, problem or other claim with respect 

to the plan.

Short-Term 

Disability

Within 60 days from the date that you 

know or should have known that there 

is an issue, dispute, problem or other 

claim with respect to your benefit. 

Within 60 days from the date you know or 

should have known that there is an issue, 

dispute, problem or other claim with respect 

to the plan. 

Termination 

Allowance Plan

Within 60 days from the date that you 

know or should have known that there 

is an issue, dispute, problem or other 

claim with respect to your benefit. 

Within 60 days from the date you know or 

should have known that there is an issue, 

dispute, problem or other claim with respect 

to the plan.

Vacation Buy Within 60 days from the date that you 

know or should have known that there 

is an issue, dispute, problem or other 

claim with respect to your benefit. 

Within 60 days from the date you know or 

should have known that there is an issue, 

dispute, problem or other claim with respect 

to the plan. 

Workers’ 

Compensation 

Supplement Plan 

Within 60 days from the date that you 

know or should have known that there 

is an issue, dispute, problem or other 

claim with respect to your benefit. 

Within 60 days from the date you know or 

should have known that there is an issue, 

dispute, problem or other claim with respect 

to the plan. 
CLAIMS AN APPELS PROCEDUR

CLAIMS AND 

APPEALS 

PROCEDURES

If a plan is not listed in the above table, see the 

benefit summary for that plan to find out what time 

limits apply. IF YOU DO NOT FILE YOUR CLAIM BY 

THE APPLICABLE DEADLINE AND IN THE PROPER 

MANNER, YOUR CLAIM WILL EXPIRE AND IT WILL 

BE AUTOMATICALLY DENIED IF SUBSEQUENTLY 

FILED. YOU WILL NEVER BE ABLE TO PROCEED 

WITH A LAWSUIT BASED ON THAT CLAIM.

You do not need to file a claim regarding a rescission 

of coverage under the Kodak Medical Assistance 

Plan. When you are notified by the plan administrator 

or his or her delegate that your coverage under the 

Kodak Medical Assistance Plan is being rescinded, 

that notification is considered to be a claim denial and 

you can appeal the rescission in accordance with the 

appeal procedure described below.

If your claim involves a plan change or amendment, 

you are deemed to know about your claim as it relates 

to the change or amendment when the change or 

amendment is first communicated to plan participants, 

whether or not the change or amendment has taken 

effect by that date. The 60-day period for filing a 

claim regarding a plan change or amendment starts 

to run as of the date the change or amendment is first 

communicated to plan participants. 

Example 1: You are a participant in a Kodak dental plan, 

and you incur a claim for a dental service that meets the 

requirements for payment by the plan. That type of claim 

is a Routine Claim for Payment of Benefits. If you do not 

file your claim within one year of incurring the expense, as 

required by the plan, your claim will have expired. If you 

try to claim the expense after this one-year time period, 

your claim will be denied. In other words, if you miss an 

applicable filing deadline, you will never be eligible to 

obtain payment for the services described in your claim.

Example 2: You are a participant in a Kodak life insurance 

plan. Kodak amends the plan to provide that smokers will 

be required to pay higher premiums than non-smokers. 

You want to submit a claim to challenge that amendment. 

That type of claim is an Other Claim so you must file your 

claim within 60 days after the date the amendment is 

first communicated by Kodak. If you do not file your claim 

within this 60-day time period, you will never be able 

to challenge the amendment through either the claims 

procedure used by the dental plans and/or a lawsuit 

in court.

Brief Overview of Plan-Specific Claims Rules:

Medical, Dental, HCRA and DCRA: You must 

complete the appropriate claim form, attach the 

required supporting documentation, and mail it to 

the appropriate claims processing unit as noted in 

the “Claims and Payment of Benefits” portion of the 

applicable plan’s benefit summary. Be sure to file 

your claim by the proper deadline. In some cases, a 

physician or a hospital may “file” the claim for you by 

billing the carrier or other claims reviewer directly.

EAP: To use the EAP, you should contact the EAP 

office as described in the plan’s benefit summary.

Life, ADI, OAD: In the case of life insurance, ADI, 

Dependent ADI and OAD, on receiving notice of 

an event (such as a death or dismemberment), 

Metropolitan Life Insurance Company (MetLife) will 

send the beneficiary a letter and self-explanatory 

forms to be completed and returned. When 

completed and returned, these forms constitute a 

Routine Claim for Payment of Benefits.

In the event you or your Dependent suffer an 

accidental injury that is covered under ADI or 

Dependent ADI, you can file a claim with MetLife as 

noted under “Claims and Payment of Benefits” in the 

ADI and Dependent ADI summaries.

Retirement Plans: When you leave the Company for 

any reason (except death), you will have to contact 

the SIP-Line to request distribution of any funds you 

have in SIP. You also must complete the appropriate 

forms for the eventual distribution of any retirement 

income benefit you may receive under KRIP. 

LTD: If you wish to apply for LTD benefits, you should 

apply when you receive notification from the Kodak 

Employee Service Center that your STD or WCS 

benefits will be exhausted. You should also contact 

the Kodak Employee Service Center to apply for LTD 

benefits if you are laid off while on STD or WCS and 

your benefits under that plan will be ending.

Note: Additional information regarding how to file claims 

is included in each of the benefit summaries contained in 

this handbook or provided to you under separate cover. 

Review the “Claims and Payment of Benefits” section 

in the benefit summaries. For life insurance, ADI 

and OAD, you should also review the “Beneficiaries 

and Assignments” sections in those summaries. For 

KRIP and SIP, you should also review the “Survivor 

Benefits” sections in those summaries. Kodak also 

maintains certain plans that are no longer open to 

new enrollment by Employees in general but which 

continue to cover certain Employees and/or former 

Employees and their Dependents and beneficiaries. 

If you are a participant, Dependent, or beneficiary 

under one of those plans, you should consult the 
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supplement to the handbook that you were provided 

in connection with that plan in addition to reading 

this section.

Use of Authorized Representatives: You can 

designate, by means of a power of attorney, an 

authorized representative to act on your behalf in 

connection with the submission or processing of plan 

claims. A court-appointed legal guardian or custodian 

may also be appointed to act as the authorized 

representative on your behalf. 

Note: An assignment of benefits by a claimant 

does not by itself function as an authorized 

representative designation.

If you are a Dependent Child, your parents or legal 

guardian will automatically be considered your 

authorized representative if you are a minor under 

applicable state law, and to the extent permitted or 

required by state or other law.

In the event that you are covered under a benefit 

plan providing medical or dental coverage and need 

urgent care, the plan will recognize a health care 

professional with knowledge of your condition as your 

authorized representative.

In the absence of a power of attorney, courtappointed designation or automatic designation as 

discussed above, an individual will not be permitted 

or authorized to act on your behalf. For example, a 

participant will not be permitted to act on behalf of 

his or her spouse without a valid power of attorney or 

a court-appointed designation.

If you are deceased, your estate or a person with 

appropriate legal authority may act on your behalf. 

Written designation of an authorized representative is 

necessary to protect against disclosure of information 

about you to unauthorized persons or entities. When 

you have an authorized representative, all notices and 

other communications pertaining to your claim will be 

furnished to the authorized representative only, unless 

you make a written request to the claims reviewer 

that a copy of all notices and other communications 

be sent to you.

Initial Claims Determinations

When you initially file a claim, be sure to file all of 

the arguments and evidence that you would like the 

reviewer to consider. Although you will be able to 

file additional arguments and evidence in support of 

your claim on appeal if your initial claim is denied, it 

is obviously in your best interest to give the reviewer 

all of the arguments and information necessary to 

approve your claim initially so that you do not need to 

file an appeal.

If you have questions about any notice you receive 

regarding the approval, denial, payment or nonpayment of your claim, you should contact the 

claims reviewer with whom the claim was filed (for 

example, the plan administrator, insurance carrier 

or other claims administrator), since there may be 

a simple solution to your problem. However, if you 

cannot resolve your questions through this informal 

process and wish to appeal, you must file your formal 

appeal by the deadline described below, even if you 

have previously discussed your questions informally 

with the claims reviewer. Therefore, keeping track of 

deadlines is very important.

Routine Claims: Routine claims for payment of 

benefits will be processed according to the 

following rules:

Separate Procedures for Medical Benefits: If your 

claim is for medical benefits (other than prescription 

drug benefits) the claim will be processed according 

to the procedures described in the most recent 

benefits booklet available for that option. If no 

benefits booklet is in effect for your medical plan 

when the claim is filed, your claim will be processed 

according to the procedures described below.1

Claims for Benefits other than Medical, Dental, HCRA,

EAP or Disability Benefits: If your claim is for benefits 

other than medical, dental, HCRA, EAP or disability 

benefits, the claims reviewer with whom your claim 

was filed has to make a decision whether to approve 

or deny the claim within a reasonable period of time. 

Generally, the claims reviewer will make the initial 

determination within 90 days of the reviewer’s receipt 

of the claim. In special situations, an extension for an 

additional 90 days may be required to process the 

1 State laws generally have special rules governing the processing of 

claims for insured health care benefits. These laws usually include 

claim determination processes similar to the procedures described 

in this summary. However, if a rule described in this summary is 

more favorable to a claimant than the rule under state law, this 

summary’s rule may supersede the rule required by state law. As a 

result, the rules used to process an insured health care claim should 

be determined at the time that the claim is filed.
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claim. In such a case, the claims reviewer will 

provide you with written notice of the extension 

within the original 90-day period, explaining the 

reason for the delay and the date by which you can 

expect a decision.

If your claim is approved by the claims reviewer, 

payment of the claim will be made as described under 

the “Claims and Payment of Benefits” part in the 

applicable plan’s benefit summary.

If your claim is denied by the claims reviewer, you 

will receive written or electronic notification from 

the claims reviewer of the specific reason or reasons 

for the denial. The notice will also include specific 

reference to applicable plan provisions on which the 

denial was based, a description of any additional 

information needed to complete the claim with an 

explanation of why it is necessary, instructions to 

be followed if you wish to appeal the denial, and a 

statement about your right to bring a civil lawsuit 

under ERISA following the appeal. The denial notice 

will be mailed within 90 days of the claim’s filing 

unless the 90-day processing extension applied to 

the claim. In that case, the denial notice will be mailed 

within 180 days of the claim’s filing.

If you do not receive notice of a decision or an 

extension notice within 90 days of filing your claim, 

you must assume that your claim has been denied. 

If you receive an extension notice, but you do not 

receive notice of a decision within 180 days of filing a 

claim, you must assume that the claim has 

been denied.

Claims for Medical, Dental, HCRA or EAP Benefits:

The procedures for processing medical (including 

prescription drug), dental, HCRA or EAP claims (i.e., 

“health care claims”) vary depending on the type of 

health care claim. Health care claims are divided into 

4 types:

• Urgent Care Claims: Any health care claim where

your life or health, or your ability to gain maximum

function is in jeopardy or, in the opinion of your

doctor, you are subject to severe pain which

cannot be adequately managed without the care or

treatment proposed in the claim.

• Concurrent Care Claims: Any health care claim

previously approved as an ongoing course of

treatment to be provided over a period of time

or over a number of treatments where you

request that the care be extended, or the care is

either reduced or terminated by the health plan.

Concurrent care claims may also be classified

as urgent care claims, pre-service care claims or

post-service care claims and, if so, the claim will

be processed using the other claim classification

rules unless a specific concurrent care claim rule

pertains to the claim.

• Pre-service Care Claims: Any health care claim

for non-urgent care that must be decided before

you will be given access to the care (that is, preauthorization of the claim). A pre-service care

claim may also be classified as an urgent care

claim and, if so, the rules applicable to urgent care

claims supersede the rules applicable to preservice care claims.

• Post-service Care Claims: Any health care claim for

non-urgent care that has already been provided

involving the payment or reimbursement of costs

for the care.

The claims reviewer has full discretionary authority to 

determine the type of claim being processed.

When making an initial determination, the claims 

reviewer must decide whether to approve or deny the 

health care claim within the following time frames:
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Type of Claim Timeframe for Making an Initial Claim 

Urgent Care 

Claims

A decision must be made as soon as possible, taking into account the medical 

circumstances, but not later than 72 hours after the claims reviewer receives the claim, 

unless more information is needed to process the claim. If more information is needed, the 

claims reviewer has 24 hours to notify you of the specific information needed, you have 48 

hours from receipt of the notice to provide the information, and the claims reviewer must 

make a decision within 48 hours after the earlier of the receipt of the needed information 

or the end of your 48-hour period to provide the information. 

Concurrent 

Care Claims

If the claim is a request to extend a course of treatment involving an urgent care claim, a 

decision must be made as soon as possible, not to exceed 72 hours, taking into account 

the medical circumstances, but not later than within 24 hours of your request for an 

extension of care if the request was made at least 24 hours before the treatment is to end. 

If urgent care is not involved, the claim will be processed as a pre-service or post-service 

care claim, as appropriate. If the claim pertains to a premature reduction or termination 

of a course of treatment by the plan, you must be given sufficient advance notice of the 

reduction or termination to permit you to appeal and obtain a determination on review 

before the reduction or termination goes into effect. 

Pre-Service 

Care Claims

A decision must be made within a reasonable period of time appropriate to the medical 

circumstances, but not later than 15 days after the claims reviewer receives the claim, 

except that an extension of an additional 15 days may be taken in circumstances beyond 

control of the claims reviewer with notice to you before the initial 15-day period expires. If 

the circumstances involve the need for more information, you have 45 days from receipt 

of notice to provide the information, and the claims reviewer must make a decision within 

15 days after the earlier of the receipt of the needed information or the end of your 45-day 

period to provide the information. 

Post-Service 

Care Claims

A decision must be made within a reasonable period of time, but not later than 30 days 

after the claims reviewer receives the claim, except that an extension of an additional 15 

days may be taken in circumstances beyond control of the claims reviewer with notice to 

you before the initial 30-day period expires. If the circumstances involve the need for more 

information, you have 45 days from receipt of notice to provide the information, and the 

claims reviewer must make a decision within 15 days after the earlier of the receipt of the 

needed information or the end of your 45-day period to provide the information. 

If you do not receive notice of a decision or an 

extension notice within the applicable time period 

described above, you must assume that the claim 

has been denied. If you received an extension notice, 

but do not receive notice of a decision within the 

applicable time period described above, you must 

assume that the claim has been denied.

Whenever a health care claim is denied, the claims 

reviewer must give notice of the denial to you in 

writing or electronically. The denial notice will 

identify the claim and include the specific reason(s) 

for the denial (including an explanation of the 

scientific or clinical basis used to support a finding 

that the proposed care is not medically necessary 

or experimental), specific reference to applicable 

plan provisions on which the denial was based 

(including disclosure of any internal rule, guideline 

or protocol relied on in making the determination), 

a description of any additional information needed 

to complete the claim with an explanation of why it 

is necessary, instructions to be followed if you wish 

to appeal the denial (including how to appeal on an 

expedited basis if the denial pertains to an urgent care 

claim), information regarding the availability of, and 

contact information for, an applicable office of health 

insurance consumer assistance or ombudsman, 

and statements about your rights to request the 

applicable diagnosis and treatment codes and their 

corresponding meanings and bring a civil lawsuit 

under ERISA following the appeal.

Claims For Disability Benefits: If your claim is for 

disability benefits (e.g., STD or LTD benefits), the 

claims reviewer has to make a decision whether to 
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90 days of its receipt of the claim. However, in special 

situations, an extension for an additional 90 days 

may be required to process the claim. In such a case, 

written notice of an extension will be furnished within 

the original 90-day period, explaining the reasons 

for the delay and the date by which a decision can 

be expected.

If your claim is approved by the claims reviewer, 

the plan administrator will take appropriate action 

to resolve your claim. You will be informed of the 

action the plan administrator decides to take. If you 

are not satisfied that the plan administrator’s action 

will resolve your claim, you may file an appeal as 

described below.

If your claim is denied by the claims reviewer, you 

will receive written or electronic notification from 

the claims reviewer of the specific reason or reasons 

for the denial. The notice will also include specific 

reference to applicable plan provisions on which the 

denial was based, a description of any additional 

information needed to complete the claim with an 

explanation of why it is necessary, instructions to 

be followed if you wish to appeal the denial, and a 

statement about your right to bring a civil lawsuit 

under ERISA following the appeal. The denial notice 

will be mailed within 90 days of the claim’s filing 

unless the 90-day processing extension applied to 

the claim. In that case, the denial notice will be mailed 

within 180 days of the claim’s filing. 

If you do not receive notice of a decision or an 

extension notice within 90 days of filing your claim, 

you must assume that your claim has been denied. If 

you receive an extension notice, but you do not receive 

notice of a decision within 180 days of filing a claim, 

you must assume that the claim has been denied.

Appeals

How to File an Appeal: If the claims reviewer denies 

your claim, or if the claims reviewer approves 

your claim but, in the case of a Routine Claim for 

Payment of Benefits, you are not satisfied with the 

payment promised or made, or in the case of an 

Other Claim, you are not satisfied with the action 

the plan administrator then takes to resolve your 

claim, you should contact the claims reviewer. The 

claims reviewer may be able to answer questions or 

otherwise satisfy your concerns about the handling 

of the denied claim. As noted above, if you receive 

notification of a rescission of your coverage under 

the Kodak Medical Assistance Plan, that notification 

approve or deny the claim within a reasonable period 

of time, not to exceed 45 days following the reviewer’s 

receipt of the claim. An extension of an additional 

30 days may be taken in circumstances beyond the 

reviewer’s control so long as written notice is given 

to you before the initial 45-day period expires. This 

notice will explain the reason(s) for the delay and 

the date by which a decision can be expected. If 

a reason for the delay involves the need for more 

information, you have 45 days from receipt of the 

extension notice to provide the needed information, 

and a determination will then be made within 30 days 

after the earlier of the date that the claims reviewer 

receives the needed information or the end of your 

45-day period to provide the information.

A second extension of an additional 30 days may be 

taken in circumstances beyond the claims reviewer’s 

control so long as written notice is given to you before 

the first 30-day extension period expires. The notice 

will also explain why the delay is necessary and the 

date by which a decision can be expected, and if 

a reason for the delay involves the need for more 

information, you again have 45 days from receipt of 

the extension notice to provide the information. A 

determination will be made within 30 days after the 

earlier of the date that the claims reviewer receives 

the needed information or the end of your 45-day 

period to provide the information.

If the claim is denied, you will be given written or 

electronic notice of the denial. The denial notice will 

include the specific reason(s) for the denial, specific 

reference to applicable plan provisions on which 

the denial was based (including disclosure of any 

internal rule, guideline or protocol relied on in making 

the determination), a description of any additional 

information needed to complete the claim with an 

explanation of why it is necessary, instructions to 

be followed if you wish to appeal the denial, and a 

statement about your right to bring a civil lawsuit 

under ERISA following the appeal.

If you do not receive notice of a decision or an 

extension notice within 45 days of filing your claim, 

you must assume that your claim has been denied. 

If you receive an extension notice, but you do not 

receive notice of a decision within the applicable time 

period described above, you must assume that the 

claim has been denied. 

Other Claims: All Other Claims must be filed, in 

writing, with the plan administrator of the relevant 

plan by the deadline stated above. The claims 

reviewer will make a decision on your claim within 
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is considered a claim denial and you may appeal it in 

accordance with the appeal procedure described in 

this section. 

If you remain dissatisfied and wish to appeal your

claim denial, you must write a letter (as described

below) to the claims reviewer within the time specified

as follows:

For a Routine Claim for Payment of Benefits:

• Within 60 days following your receipt of the claim’s

denial notice (or within 60 days of the date the claim

is assumed to be denied) if the claim involved is not a

medical (including prescription drug), dental, HCRA,

EAP or disability claim.

• Within 180 days following your receipt of the claim’s

denial notice (or within 180 days of the date the claim

is assumed to be denied) if the claim involved is a

medical (including prescription drug), dental, HCRA,

EAP or disability claim. If the denial notice pertains

to an urgent care claim (including a concurrent care

claim that is an urgent care claim), an expedited

appeals process is available upon your oral or

written request.

For an Other Claim:

• Within 60 days following your receipt of the claim’s

denial notice (or within 60 days of the date the claim

is assumed to be denied).

For a Rescission of Coverage under the Kodak Medical

Assistance Plan:

• Within 180 days following your receipt of the notice of

rescission of coverage.

No form of communication other than a letter 

(for example, telephone or e-mail) will constitute 

an appeal, unless the denial notice pertains to an 

urgent care claim (including a concurrent care claim 

involving an urgent care claim). When an urgent care 

claim is involved, an expedited appeals process is 

available upon your oral or written request, and an 

oral or written statement will constitute an appeal. 

Additionally, in connection with urgent care claims, 

all necessary information, including the decision 

on appeal, will be transmitted between you and the 

administrator reviewing the appeal by telephone, 

facsimile or another method which is similarly quick. 

If you do not file your appeal by the deadline in an 

appropriate format, your claim will expire and the 

claim denial or assumed denial will be FINAL. You 

will not be able to pursue an appeal or a lawsuit in 

connection with that claim.

IMPORTANT!

A “claim” includes the issues and arguments you 

raised in your initial claim and all related issues 

and arguments, including any claim that the 

claims reviewer or any other plan representative 

is operating under a conflict of interest. You 

are free to make new arguments and provide 

additional evidence in support of your claim when 

you appeal, but if you do not appeal properly 

and on time, your claim cannot be raised in 

subsequent litigation. You cannot avoid this rule 

by filing a new initial claim on the same subject 

with different arguments. 

Your appeal letter must be in the form directed by 

the claims reviewer, and must include all information 

required by the claims reviewer as well as the reasons 

why you believe the claim was improperly denied, 

and any other data, questions or comments you deem 

appropriate. Contact the claims reviewer with any 

questions you may have about how to file an appeal 

and what information to include. Remember, it is very 

important for you to make all arguments you believe you 

have in support of your claim on appeal, and to provide 

any supporting documentation or other data. The claims 

reviewer will conduct a full and fair review and will 

try to make a fair decision, but he or she cannot 

review arguments or evidence not filed, so it is in your 

interest to present your best possible case. Also, any 

arguments not made and evidence not filed on appeal 

CANNOT BE RAISED in subsequent litigation.

Please keep in mind that while the claims reviewer 

can assist you with questions about these procedures, 

the claims reviewer cannot provide you with legal 

advice. You are solely responsible for preparing your own 

appeal and for making sure that it includes all necessary 

information. You may want to consult with your attorney 

about your appeal.

When you appeal a denied claim, you have the right 

to file written comments, documents, records and 

other information relating to the denied claim. You 

also can access or obtain copies of any documents, 

records and other information relevant to the denied 

claim upon request and without charge (subject to 

applicable privilege rules). For appeals under the 

Kodak Medical Assistance Plan, if the claims reviewer 

considers, relies upon or generates new or additional 

evidence in connection with your claim, or if the 

claims reviewer intends to deny your appeal based 

on a new or additional rationale, the claims reviewer 
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will provide you with such new evidence or rationale 

as soon as possible and sufficiently in advance of the 

date on which a final determination must be made on 

your appeal to give you a reasonable opportunity to 

respond to the new evidence or rationale.

Finally, if you believe that the claims reviewer who 

reviewed your initial claim, and/or the claims reviewer 

to whom your claim has been assigned on appeal, is 

acting under a conflict of interest, your appeal letter 

must say so. If you do not object to any perceived 

conflicts on appeal, you will be considered to have 

agreed that the claims reviewer does not have a 

conflict of interest, and you cannot raise this issue in 

a lawsuit.

Claims Reviewer: The claims reviewer for appeals will 

be determined as follows:

If a denied Routine Claim for Payment of Benefits 

being appealed pertains to the following self-insured 

medical coverage, the plan’s third-party claims 

administrator is the claims reviewer authorized to 

review the appeal: 

• PPO coverage;

• CDHP coverage; and

• KRx coverage.

The claims administrator for a particular coverage is 

identified in the booklet describing the coverage or in 

the benefit summary in this handbook describing the 

applicable plan.

If a denied Routine Claim for Payment of Benefits 

applies to insured coverage under the following plans, 

the carrier is the claims reviewer authorized to review 

the appeals: 

• LTD Plan;

• ADI;

• Dependent ADI;

• Dependent Life Insurance Plans; and

• Employee Life Insurance Plans.

If a denied Routine Claim for Payment of Benefits 

being appealed pertains to the following plan benefits, 

an individual (currently the Director, Global Benefits 

and Employee Services) has been authorized to 

review appeals of claims denials: 

• KRIP; and

• SIP.

All other denied Routine Claims for Payment of 

Benefits, all denied Other Claims for any plan and 

all rescissions of coverage under the Kodak Medical 

Assistance Plan, must be appealed to the 

plan administrator. 

Appeals Involving Routine Claims: Appeals involving 

routine claims for payment of benefits will be 

processed as follows:

Separate Procedures for Medical Benefits: If your 

denied claim is for medical benefits (excluding 

prescription drug benefits), the claim will be 

processed according to the procedures described in 

the most recent benefits booklet available for that 

option or, if no benefits booklet for your medical plan 

is in effect when the appeal is filed, according to the 

procedures described later.1

If your denied claim is for any other benefits, the 

procedures described below will govern how the claim 

is processed.

Appeals of Rescissions of Coverage under the Kodak

Medical Assistance Plan and Denied Claims Other

Than Medical, Dental, HCRA, EAP or Disability:

The claims reviewer authorized to review your 

appeal has to make a decision whether to approve 

or deny the appeal within a reasonable period of 

time, not to exceed 60 days following the date on 

which the reviewer receives the written appeal. In 

special circumstances, however, an extension for an 

additional 60 days may be required for processing an 

appeal. In such a case, written notice of the extension 

will be furnished to you within the original 60-day 

period, explaining the reason for the delay and the 

date by which you can expect a decision. 

In making a decision, the claims reviewer will take 

into account all information filed by you that relates 

to your denied claim without regard to whether the 

information was filed or considered when the initial 

claim determination was made. You will receive 

written or electronic notice of the claims reviewer’s 

decision regarding the appeal. If the decision upholds 

the initial claim denial (that is, if your claim is denied 

on appeal), the notice will include: 

• the specific reason(s) for the adverse

determination;

• specific references to the pertinent plan provisions

on which the decision is based;

• a statement that you are entitled to receive, upon

request and without charge, reasonable access

1 State laws generally have special rules governing the review of 

denied claims for insured health care benefits. These laws usually 

include appeal processes similar to the appeal procedures described 

in this summary. However, if a rule described in this summary is more 

favorable to a claimant than the rule under state law, this summary’s 

rule may supersede the rule required by state law. As a result, the 

rules used to appeal a denied insured health care claim should be 

determined at the time that the appeal is filed.
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to and copies of all documents, records and other 

information relevant to the denied claim; 

• a statement describing any voluntary appeal

procedures offered by the plan and how to obtain

information about those procedures; and

• a statement about your right to start a civil lawsuit

under ERISA.

If you do not receive notice of the decision regarding 

your appeal within the applicable 60-day review 

period (or 120-day review period if an extension 

applies), you must assume that the appeal has been 

denied.

Appeals of Denied Medical, Dental, HCRA or EAP

Claims: The claims reviewer authorized to review 

your appeal of a denied health care claim (i.e., a 

claim under the Kodak Medical Assistance Plan, KRx, 

Dental, HCRA or EAP) will be someone other than the 

decision maker of the initial claim determination. In 

making a decision, the claims reviewer will not defer 

to the findings and conclusions made with respect to 

the initial claims determination. If the denied health 

care claim being appealed is 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 claims 

reviewer must consult with a health care professional 

who has appropriate training and experience in the 

field of medicine involved in the medical judgment 

and who was not involved with the initial claims 

determination. The carrier or claims administrator 

making the initial claim determination must identify 

the medical and vocational experts whose advice was 

obtained on behalf of the plan in connection with that 

determination, regardless of whether the advice was 

relied upon in making the determination.

The claims reviewer must decide upon the appeal 

within the applicable timeframes described below:

Type of Claim Timeframe for Making an Appeal Determination 

Urgent Care Claims As soon as possible, taking into account the medical circumstances, but not later than 

72 hours after receipt of your appeal. 

Concurrent 

Care Claims

If the appeal involves extension of care, use the time period applicable to urgent, preservice or post-service care claims, as applicable. If the appeal involves reduction or 

termination of care, before care is reduced or terminated. 

Pre-Service 

Care Claims

Within a reasonable period of time appropriate to the medical circumstances, but 

not later than 30 days after receipt of your appeal in the case of a plan that offers one 

appeal of the claim denial or, in the case of a plan that offers two appeals, 15 days 

after the receipt of your first request for review with respect to the first appeal 

and 15 days after receipt of your second request for review with respect to the 

second appeal.1

Post-Service 

Care Claims

Within a reasonable period of time, but not later than 60 days after receipt of your 

appeal in the case of a health plan that offers one appeal of the claim denial or, in the 

case of a health plan that offers two appeals, 30 days after the receipt of your first 

request for review with respect to the first appeal and 30 days after receipt of your 

second request for review with respect to the second appeal.1

1

When a decision regarding an appeal is made, you 

will receive written or electronic notice from the 

claims reviewer. If the decision upholds the initial 

claim denial (that is, if your claim is denied on 

appeal), the notice will include: 

1 Certain Health Plans under the Kodak Medical Assistance Plan offer 

two appeals. You should review your benefits booklet to determine 

if your Health Plan does and, if so, what the deadline is for filing the 

second appeal. In all other cases, only one appeal of a denied claim is 

permitted by the plan.

• the specific reason(s) for the adverse

determination (including an explanation of the

scientific or clinical basis used to support a finding

that the proposed care is not medically necessary

or experimental);

• specific reference to applicable plan provisions on

which the decision was based (including disclosure

of any internal rule, guideline or protocol relied on

in making the determination);
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• a statement that you are entitled to receive, upon

request and free of charge, reasonable access to

and copies of all documents, records and other

information relevant to the denied claim;

• a statement regarding any voluntary appeal

procedures offered by the plan and how to obtain

information about those procedures;

• in the case of a denied health care claim under the

Kodak Medical Assistance Plan, the notice will

also identify the claim, include statements about

your ability to request the applicable diagnosis and

treatment codes and their corresponding meanings

and regarding the availability of, and contact

information for, an applicable office of health

insurance consumer assistance or ombudsman,

and describe available external review processes

and information on how to initiate an

external review;

• a statement about your right to bring a civil lawsuit

under ERISA; and,

• if applicable, a statement about other voluntary

alternative dispute resolution options available.

If you do not receive notice of the decision regarding 

an appeal within the applicable review period, you 

must assume that the appeal has been denied.

Appeals of Denied Disability Claims: The claims 

reviewer authorized to review your appeal will be 

someone other than the decision maker of the 

initial claim determination. The claims reviewer 

has to make a decision about the appeal within a 

reasonable period of time, not to exceed 45 days 

following the date on which the reviewer receives 

the written appeal. An extension of an additional 45 

days may be taken if the reviewer determines that 

special circumstances apply and written notice of 

the extension is given to you before the initial 45-

day period expires. The extension notice will explain 

the reason(s) for the delay and the date by which a 

determination on review can be expected.

In making a decision, the claims reviewer will not 

defer to the findings and conclusions made with 

respect to the initial claims determination. You will 

receive written or electronic notice of the reviewer’s 

decision regarding the appeal. If the decision upholds 

the initial claim denial (that is, if your claim is denied 

on appeal), the notice will include: 

• the specific reason(s) for the adverse

determination;

• specific reference to applicable plan provisions on

which the decision was based (including disclosure

of any internal rule, guideline or protocol relied on 

in making the determination); 

• a statement that you are entitled to receive, upon

request and free of charge, reasonable access to

and copies of all documents, records and other

information relevant to the denied claim;

• a statement regarding any voluntary appeal

procedures offered by the plan and how to obtain

information about those procedures; and

• a statement about your right to bring a civil lawsuit

under ERISA.

If you do not receive notice of the decision regarding 

your appeal within the applicable 45-day review 

period (or 90-day review period if an extension 

applies), you must assume that the appeal has 

been denied.

Appeals Involving Other Claims: The claims 

reviewer has to make a decision whether to approve 

or deny the appeal within 60 days of the date on 

which the reviewer receives the appeal. In special 

circumstances, however, an extension for an 

additional 60 days may be required for processing an 

appeal. In such a case, written notice of the extension 

will be furnished to you within the original 60-day 

period, explaining the reasons for the delay and the 

date by which a decision can be expected.

In making a decision, the claims reviewer will take 

into account all information filed by you that relates 

to your denied claim without regard to whether the 

information was filed or considered when the initial 

claim determination was made. You will receive 

written or electronic notice of the claims reviewer’s 

decision regarding the appeal. If the decision upholds 

the initial claim denial (that is, if your claim is denied 

on appeal), the notice will include:

• the specific reason(s) for the adverse

determination;

• specific references to the pertinent plan provisions

on which the decision is based;

• a statement describing any voluntary appeal

procedures offered by the plan and how to obtain

information about those procedures; and

• a statement about your right to start a civil lawsuit

under ERISA.

If you do not receive notice of the decision regarding 

your appeal within the applicable 60-day review 

period (or 120-day review period if an extension 

applies), you must assume that the appeal has 

been denied.
218 CLAIMS AN APPELS PROC

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APPEALS 

PROCEDURES

External Review for KMAP and KRx Claims: If your 

appeal relating to benefits under KMAP or KRx is 

denied after the final level of appeal, you have the 

right to request an external review for some claims. 

Only denials of appeals of rescissions of coverage 

and Routine Claims involving medical judgment 

are eligible for external review. Your request for 

external review must be filed in accordance with the 

instructions contained in your appeal denial notice 

and must be received not later than 130 days after the 

date you receive the appeal denial notice or the date 

the appeal is assumed denied. If you do not properly 

request an external review in a timely manner, your 

claim cannot be raised in litigation, unless you filed 

suit within 90 days after the date that your claim was 

denied on appeal.

Within 5 business days after receiving your external 

review request, the claims reviewer will complete a 

preliminary review to determine whether your request 

is complete and eligible for external review. That 

preliminary review will determine: whether you were 

covered under the plan at the time the item or service 

was requested or provided; whether the final denial of 

your appeal related to your failure to meet the plan’s 

eligibility requirements; whether you exhausted the 

plan’s internal appeal process (or are not required 

to exhaust the process); and whether you have 

provided all the information and forms required to 

process an external review. Within one business day 

after the claims reviewer completes its preliminary 

review, it will issue you a written notification. If your 

request is complete, but not eligible for external 

review, the notification will include the reasons for its 

ineligibility and contact information for the Employee 

Benefits Security Administration. If your request 

is not complete, the notification will describe the 

information or materials needed to make the request 

complete and you will be allowed to perfect your 

request for external review within the original 130-day 

filing period or, if later, the 48-hour period following 

your receipt of the notification. 

If your request for external review is complete and 

eligible, the claims reviewer will assign a qualified 

Independent Review Organization (IRO) to conduct 

the external review and within 5 business days after 

making the assignment will provide the IRO with 

the documents and information the claims reviewer 

considered in making its final appeal denial.

The IRO will review all of the information and 

documents received and will not be bound by any 

decisions or conclusions reached by the claims 

reviewer during the plan’s internal claim and appeal 

process. The IRO may also consider the following 

in reaching its decision: your medical records; the 

attending health care professional’s recommendation; 

reports from the appropriate health care professionals 

and other documents submitted by the claims 

reviewer, you or your treating provider; the terms 

of the plan, to ensure that the IRO’s decision is not 

contrary to the terms of the plan; appropriate practice 

guidelines; any applicable clinical review criteria 

developed and used by the plan; and the opinion of 

the IRO’s clinical reviewer(s). 

The IRO will provide written notice to you and 

the claims reviewer of the final external review 

decision within 45 days after the IRO receives the 

request for external review. The IRO’s notice will 

contain: a general description of the reason for the 

request for external review, including information 

sufficient to identify the claim, the diagnosis code 

and its corresponding meaning, the treatment code 

and its corresponding meaning and the reason for 

the previous denial; the date the IRO received the 

assignment and the date of the IRO’s decision; 

references to the evidence or documentation 

considered in reaching its decision, including the 

specific coverage provisions and evidence-based 

standards; a discussion of the principal reason or 

reasons for its decision, including the rationale for 

its decision and any evidence-based standards that 

were relied on in making its decision; a statement 

that the determination is binding except to the extent 

that other remedies may be available under state 

or federal law to either the plan or you; a statement 

that judicial review may be available to you; and, 

if applicable, current contact information for any 

applicable office of health insurance consumer 

assistance or ombudsman. 

Under the following circumstances, you may be 

eligible to file for an expedited external review:

• if you receive a claim denial that involves a medical

condition for which the timeframe for completion

of an expedited internal appeal with the claims

reviewer would seriously jeopardize your life or

health, or that would jeopardize your ability to

regain maximum function, and you have filed a

request for an expedited internal appeal; or

• if you receive a final claim denial from the claims

reviewer and:

— you have a medical condition for which the

timeframe for completion of a standard external 

appeal would seriously jeopardize your life or 

health, or would jeopardize your ability to regain 

maximum function; or 
CLAIMS AN APPELS PROCEDUR

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PROCEDURES

— if the final adverse benefit determination 

concerns an admission, availability of care, 

continued stay, or health care item or service 

for which you have received emergency services 

but have not been discharged from a facility.

Immediately upon receipt of the request for an 

expedited external review, the claims reviewer will 

complete a preliminary review of your request in order 

to determine your eligibility for an external review. 

Immediately after completion of the preliminary 

review, the claims reviewer will issue you a written 

notification of your eligibility for an external review. 

If your request is complete but not eligible for 

external review, the notice will include the reasons for 

ineligibility. If your request is incomplete, the notice 

will describe the information or materials needed 

to make the request complete and you will have an 

opportunity to complete the request.

Upon a determination that a request is eligible for an 

expedited external review, the claims reviewer will 

assign an IRO for review and transmit all necessary 

documents and information to the IRO. The IRO will 

provide notice to you and the claims reviewer of the 

final external review decision as expeditiously as 

possible, but in no event later than 72 hours after the 

IRO receives the request for the expedited external 

review. The notice will contain the information 

described above. 

Limits on Legal Actions

If your claim is denied on appeal and you are not 

satisfied with the claims reviewer’s decision, you may 

contact the claims reviewer and attempt to resolve 

your concerns informally. However, if you do not wish 

to do so, or if the claims reviewer cannot resolve your 

concerns to your satisfaction, you generally may file 

a lawsuit under ERISA, provided you comply with 

the deadlines for filing a lawsuit described in this 

section. As an alternative to litigation in court, the 

plan administrator for the plan in question retains the 

right to compel binding or non-binding arbitration or 

mediation. Also, in some cases, a plan may require 

or permit a second level of appeal (see your benefit 

summary for the particular plan). If the second level 

of appeal is mandatory, you must complete the 

second appeal process before you will be entitled to 

file suit. If the second level is voluntary, it is up to you 

whether or not you want to pursue a second appeal. 

If you decide to pursue a voluntary appeal, make sure 

that you have a written agreement from the plan 

administrator that the deadline for filing suit will be 

extended, or that the second level of appeal will be 

finished in time for you to file suit if your claim is 

denied and you wish to do so. 

If you want to file suit, you must do so by the earlier of:

1. The date that is 90 days after the date that your 

claim is denied on appeal (or, if later, 90 days after 

the date of a final external review decision); or

2. The date that is 90 days from the date a cause of 

action accrued (except that in the case of claims 

under KRIP this deadline is instead the date that is 

one year from the date a cause of action accrued). 

A cause of action “accrues” when you know or 

should know that a representative of the plan or 

Kodak as plan sponsor (whichever is applicable) 

has clearly denied or otherwise repudiated your 

claim. However, if you file a timely initial claim with 

the plan administrator or other appropriate plan 

authority, and complete the claims and appeals 

process, the deadline for filing a lawsuit will always 

be 90 days from the date that your claim was 

denied on appeal or external review (as described 

in (1) above), and you will not need to worry about 

this special rule for when a cause of action accrues. 

(Of course, if you do not file a timely initial claim 

and complete the claims and appeals process, you 

generally cannot file a lawsuit in any event.) 

Example: Kodak amends its health plan to increase cost 

and/or reduce coverage – Kodak has clearly repudiated 

or denied your right to continued coverage under the 

plan’s prior terms, and the 90-day time period for filing 

a lawsuit will begin to run when the amendment is first 

communicated to plan participants.

However, if you file a claim with the plan administrator 

within 60 days of the date the amendment is 

communicated to plan participants, and you follow the 

appeal procedure if your claim is denied by the plan 

administrator, then the deadline for you to file a lawsuit 

about the amendment will be 90 days from the date 

the plan administrator denies your claim on appeal. If 

you do not file a claim within 60 days of the date the 

amendment is communicated, the deadline for filing a 

lawsuit will expire on the 90th day after the amendment 

is communicated, and the plan administrator will ask the 

court to dismiss your lawsuit due to your failure to follow 

the claims and appeals procedure even if you file your 

lawsuit by the deadline. 

If the applicable 90-day deadline for filing a lawsuit 

described above is, for any reason, not applied by 

a court, then the deadline for filing the suit will be 

no longer than one year from the earlier of the date 
220 CLAIMS AN APPELS PROC

CLAIMS AND 

APPEALS 

PROCEDURES

the claim was denied on appeal or the date the 

cause of action accrued.1 As explained above, the 

date the cause of action accrues is the date your 

claim is denied or repudiated by Kodak or a plan 

representative. For example, a cause of action relating 

to a plan amendment accrues when the amendment 

is communicated to plan participants.

IF YOU DO NOT FILE SUIT BY THE APPLICABLE 

DEADLINE, YOUR CLAIM WILL EXPIRE AND 

YOU WILL NEVER BE ABLE TO PROCEED WITH A 

LAWSUIT IN CONNECTION WITH THAT CLAIM OR 

A RELATED CLAIM.

As described above, you are required to follow the 

procedures described in this section for plan claims 

and appeals. However, the deadlines for filing a 

lawsuit apply regardless of whether you follow the 

procedures. For example, the 90-day period for filing 

a lawsuit involving a plan change or amendment 

starts to run as of the date the change or amendment 

is first communicated to plan participants even if you 

do not file a claim. 

All lawsuits against or involving one or more of 

Kodak’s plans must be filed in the Federal Court 

for the Western District of New York located in 

Rochester, New York, unless the plan administrator 

agrees to a different forum.

Attorney’s Fees: If you file a lawsuit and the court 

or arbitrator rules against your claim, you will be 

responsible for the attorney’s fees and other expenses 

incurred by the plan, its fiduciaries, Kodak and other 

related parties in defending against your action, 

unless otherwise agreed to by the plan administrator 

or otherwise ordered by the court or arbitrator. If you 

file a lawsuit and the court rules in your favor, the 

plan, its fiduciaries, Kodak and other related parties 

will not be responsible for your attorney’s fees and 

other expenses unless otherwise ordered by the 

court or arbitrator. The applicable plan, its fiduciaries, 

Kodak and other related parties will not be liable to 

pay attorney’s fees based on the amount of recovery 

you and/or plan participants in general receive in a 

lawsuit (these kinds of fees are commonly referred to 

as “contingency fees”). 

1 This is the deadline determined under Del. Code Ann. tit. 

10 Section 8111. 

If your lawsuit is successful, the applicable plan, its 

representatives and fiduciaries, Kodak, and related 

parties will not be liable for extracontractual or 

punitive damages, and will only be liable for prejudgment interest if ordered by a court or arbitrator. 

You will not be entitled to benefits in excess of those 

promised by the terms of the written plan document, 

regardless of what oral or written statements may 

have been made to you.