UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

EDITH E. GATES; EDWARD L. GATES,

Plaintiffs-Appellants,

v.

JAMES B. KING, Director, United

States Office of Personnel

Management,

No. 96-2710

Defendant-Appellee,

and

BLUE CROSS & BLUE SHIELD OF

VIRGINIA, INCORPORATED, t/a Trigon

Blue Cross Blue Shield,

Defendant.

Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

Albert V. Bryan, Jr., Senior District Judge.

(CA-96-825-A)

Submitted: October 7, 1997

Decided: November 18, 1997

Before NIEMEYER, LUTTIG, and MICHAEL, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Gary Howard Simpson, Bethesda, Maryland, for Appellants. Helen F.

Fahey, United States Attorney, Paula P. Newett, Assistant United

States Attorney, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Edith and Edward Gates appeal from the district court's order

granting summary judgment to the Defendant, Office of Personnel

Management ("OPM"), on the ground that OPM did not act in an

arbitrary and capricious manner, abuse its discretion, or act contrary

to the law in affirming Trigon Blue Cross/Blue Shield's denial of

health care coverage to Mrs. Gates. We affirm.

Edith Gates is the spouse of Edward Gates, a retired federal

employee who enrolled in and received health benefits from the Trigon Blue Cross/Blue Shield Service Benefit Plan (the"Plan"). Mrs.

Gates suffers from post-polio syndrome, which arises approximately

thirty years after a person suffers from polio. Due to the polio, Mrs.

Gates suffered muscle damage to her upper extremities, and is now

experiencing pain, weakness, and a gradual loss of the ability to use

her upper arms. Mrs. Gates' treating physician, Dr. Roberta Gartside,

requested that the Plan pre-authorize benefits for suction assisted

lipectomy of the upper extremities, and second stage excision of the

excess skin and fat to alleviate problems associated with post-polio

syndrome. The Plan denied the claim stating that the procedure was

not medically necessary.1

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1 Under the Plan, benefits are provided only for services that are medically necessary. The Plan defines medically necessary as:

Services, drugs, supplies or equipment provided by a hospital or

covered provider of health care services that the Carrier determines:

1) are appropriate to diagnose or treat the patient's condition,

illness or injury;

2) are consistent with standards of good medical practice in

the United States;

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Dr. Gartside and Mr. Gates appealed the Plan's denial of preauthorization to the OPM. The appeal was supported by letters from Dr.

Gartside and Mrs. Gates' internist, orthopedist, and rehabilitation

physician stating that the medical procedure was necessary to alleviate the affects of post-polio syndrome. OPM requested that the Plan

provide a report on the claim and also requested that its Medical Officer review the claim. The Plan furnished a report in which it stated

the medical procedure requested was "non-covered" and "not medically necessary." The Medical Officer opined that the treatment for

the post-polio syndrome would not prevent Mrs. Gates from losing

the use of her arms because "[h]er weakness is due to deterioration

of spinal cord cells and is progressive no matter what is done." (J.A.

92). A letter from Dr. Anthony Grasso of the National Rehabilitation

Hospital in Washington, D.C., also noted evidence of thoracic spine

degenerative joint disease. Following a review of the requested

reports, the plan brochure, and the several letters from Mrs. Gates'

various physicians, the OPM notified Mrs. Gates of its affirmance of

the Plan's denial of preauthorization.

Under the Federal Employees Health Benefits Plan ("FEHBA"),

OPM has the authority to contract with private health insurance carriers to provide federal employees and retirees with health care benefits. See 5 U.S.C. § 8902(a) (1994). Federal employees enroll in a

plan approved by OPM, and OPM is authorized to decide what benefits and exclusions it considers "necessary and desirable." See 5

U.S.C. § 8902(d); 5 C.F.R. §§ 102-104, 890.101(a), and Subparts C,

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3) are not primarily for the personal comfort or convenience

of the patient, the family, or the provider;

4) are not a part of or associated with the scholastic education or vocational training of the patient; and

5) in the case of inpatient care, cannot be provided safely on

an outpatient basis.

The fact that a covered provider has prescribed, recommended,

or approved a service, drug, supply or equipment does not, in

itself, make it medically necessary.

(J.A. 144).

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D, and K. A covered individual may seek judicial review of an OPM

final action denying health benefits. See 5 C.F.R. § 890.107 (1997).

This Court reviews the decision of OPM under the arbitrary and

capricious standard of review. See 5 U.S.C.§ 706(2)(a) (1994);

Caudill v. Blue Cross & Blue Shield of North Carolina, 999 F.2d 74,

80 (4th Cir. 1993).

Agency action may not be set aside as arbitrary and capricious if

the action has a rational basis in the administrative record. See

American Meat Inst. v. United States Dep't of Agric. , 646 F.2d 125,

127 (4th Cir. 1981). The OPM based its affirmance of the Plan's

denial of coverage on the language in the Plan's brochure, documents

submitted by the Plan, documents submitted by Mrs. Gates, and the

assessment of OPM's medical consultant. Thus, OPM based its decision on relevant factors. Further, there is a rational connection

between the facts found and the final decision that the treatment is not

medically necessary. Appellants contend that because there is a small

medical advantage from the proposed procedure, it is enough to qualify Mrs. Gates for care under the Plan. However, the terms of the Plan

do not include procedures that are beneficial under its definition of

"medically necessary." Accordingly, we affirm the district court's

order.

We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and

argument would not aid the decisional process.

AFFIRMED

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