The HONORABLE CHARLES R. WOLLE, Chief Judge of the United

*

States District Court for the Southern District of Iowa,

sitting by designation.

 The HONORABLE HAROLD D. VIETOR, United States District Judge 1

for the Southern District of Iowa.

___________

No. 95-2747

___________

Jeff Ravenscraft; Martha *

Ravenscraft, *

*

Plaintiffs - Appellants, *

* Appeal from the United States

v. * District Court for the

* Southern District of Iowa.

Hy-Vee Employee Benefit Plan *

and Trust; Hy-Vee Food Stores, *

Inc., *

*

Defendants - Appellees. *

___________

 Submitted: December 14, 1995

 Filed: June 7, 1996

___________

Before BOWMAN and LOKEN, Circuit Judges, and WOLLE, Chief District Judge. *

___________

LOKEN, Circuit Judge.

Martha and Jeff Ravenscraft challenge the denial of benefits under

a health care plan governed by the Employee Retirement Income Security Act,

29 U.S.C. §§ 1001 et seq. ("ERISA"), claiming that Martha's employer

improperly amended the plan and then terminated coverage of medical

expenses for infertility treatments. The district court granted summary 1

judgment dismissing their ERISA claims, and the Ravenscrafts appeal. We

affirm.
-2-

Martha Ravenscraft is employed by Hy-Vee Food Stores, Inc. ("HyVee"). She and her husband Jeff are eligible for health benefits under the

Hy-Vee Benefit Plan and Trust (the "Plan"), an employee welfare benefit

plan under ERISA. See 29 U.S.C. § 1002(1). Martha underwent a tubal

ligation sterilization procedure in 1986, but by the Spring of 1992 the

Ravenscrafts had decided they would like to have another child. 

Because the Plan does not cover medical expenses to reverse voluntary

sterilization, Martha inquired whether the Plan would cover in vitro

fertilization ("IVF") treatment, a procedure that in some cases has

achieved conception without surgically reversing prior sterilization. The

Plan's Benefit Coordinator responded, "it appears the treatment would be

a covered benefit [under] our plan, subject to all plan provisions." The

Ravenscrafts then began IVF treatment at the University of Iowa Hospitals.

Between May and August 1992, they completed one unsuccessful IVF treatment

cycle and terminated a second cycle due to an unrelated health problem.

The parties agree that each IVF cycle is a separate treatment that may or

may not result in pregnancy. 

In the Fall of 1992, Hy-Vee's Board of Directors concluded that it

is inconsistent to cover IVF expenses but not sterilization reversal

expenses. Accordingly, they amended the Plan to provide that no benefits

would be paid to promote conception if the patient previously underwent

voluntary sterilization. The Ravenscrafts received notice of this

amendment in December 1992, and Jeff telephoned to complain about the

change in coverage. The amendment took effect on January 1, 1993, and the

Ravenscrafts cancelled IVF procedures scheduled for January 8. On January

12, their attorney wrote the Plan Director demanding that the Plan "restore

infertility treatment benefits." She responded that Hy-Vee had properly

exercised its right to change the terms of the Plan.
-3-

The Ravenscrafts commenced this action in state court in February

1994 against Hy-Vee and the Plan. Defendants removed, and both sides moved

for summary judgment. The district court granted defendants' motion,

dismissing the complaint in its entirety. The Ravenscrafts appeal the

dismissal of their ERISA claims.

1. In the district court, the Ravenscrafts argued that the Plan

amendment eliminating coverage of IVF treatment expenses is invalid because

Hy-Vee's disclosure that it reserves "the right to change or terminate the

Plan at any time" does not comply with ERISA's disclosure requirement. See

29 U.S.C. § 1102(b)(3). On appeal, the Ravenscrafts concede that this

argument is foreclosed by Curtiss-Wright Corp. v. Schoonejongen, 115 S. Ct.

1223, 1228-29 (1995), which held that a disclosure generally reserving the

employer's right to amend the plan satisfies § 1102(b)(3). However, the

Ravenscrafts argue that defendants nonetheless violated ERISA disclosure

obligations because they did not disclose that the Plan's trustees must

finally approve Plan amendments that "change substantially the powers,

duties, or liabilities of the Trustees," including amendments changing Plan

benefits. 

We doubt that the proper remedy for such a disclosure violation would

be to invalidate the plan amendment. But we put that question aside

because the Ravenscrafts' disclosure theory fails on the merits. The Plan

discloses that "the Company" may amend the Plan. A company acts through

its officers and agents -- in this case Hy-Vee's Board of Directors -- not

through independent Plan trustees. See Schoonejongen, 115 S. Ct. at 1229.

Moreover, the Plan's separate Trust Agreement provides that the trustees

must pay benefits according to the "Plan Document," which in turn is

defined as the schedule of benefits "as may from time to time be amended."

Thus, the trustees have no role in amending the Plan, and their duties are

not substantially changed by amendments to the Plan's schedule of benefits.

The district court correctly dismissed the Ravenscrafts' ERISA disclosure

claim. 
-4-

2. The Ravenscrafts next argue that Hy-Vee abused its discretion by

amending the Plan to terminate coverage for IVF treatments. ERISA does not

provide a right to benefits under an employee welfare benefit plan, and an

employer does not act as an ERISA fiduciary in adopting or amending that

type of plan. Schoonejongen, 115 S. Ct. at 1228. Thus, absent a contrary

contractual commitment, "[a]n employer may unilaterally modify or terminate

health benefits." John Morrell & Co. v. United Food & Commercial Workers

Int'l Union, 37 F.3d 1302, 1303-04 (8th Cir. 1994), cert. denied, 115 S.

Ct. 2251 (1995). Here, Hy-Vee retained complete discretion to amend the

Plan. Its decision to amend the Plan to eliminate the benefits in question

is not subject to judicial review for abuse of discretion. 

3. The Ravenscrafts next argue that defendants were arbitrary and

capricious in applying the January 1993 Plan amendment to deny their claim

for continuing IVF benefits. That broad issue was presented in counsel's

demand letter to the Plan Director -- he asserted that the Benefit

Coordinator obligated the Plan to provide those benefits for as long as the

Ravenscrafts continued IVF treatments when the Benefit Coordinator wrote

to inform Martha that IVF treatments were covered. Defendants denied this

claim, explaining that each IVF treatment cycle is a separate medical

procedure and therefore the amendment precludes coverage for IVF cycles

that begin after its effective date. 

In their summary judgment memorandum to the district court, however,

the Ravenscrafts argued a more limited and factually different theory.

They submitted an affidavit that Martha had begun a third cycle of IVF

treatments in November 1992 and would have continued that cycle in January

1993 had the Plan amendment not caused her to cancel. Pointing to

defendants' interrogatory answer admitting that "if a member was in a

treatment cycle prior to a change in plan coverage, said member would be

allowed to complete that particular treatment cycle," and to a Trust

Agreement
-5-

provision that no amendment to that Agreement may result in a reduction of

benefits payable on account of a pre-existing "sickness," the Ravenscrafts

now argued that defendants were arbitrary and capricious in invoking the

amendment to terminate coverage of their on-going third IVF treatment

cycle. 

There is certainly support for this theory in the ERISA case law.

See Lutheran Med. Ctr. v. Contractors Health Plan, 25 F.3d 616, 621-22 (8th

Cir. 1994) (an "unreasonable inconsistency" in paying health benefits is

evidence of arbitrary and capricious action). The problem is that it was

never presented to the Plan administrators; it grew out of discovery and

the summary judgment process in the district court. In support of their

motion for summary judgment, defendants submitted an affidavit by the Plan

Director averring that she first learned of Martha Ravenscraft's claim of

a third IVF treatment cycle in Martha's summary judgment affidavit. This

averral was supported by other evidence -- Hy-Vee's business record of the

December 21, 1992, telephone complaint from Jeff Ravenscraft, which noted

that Martha's next cycle would begin January 8, 1993; counsel's January 12,

1993, demand letter, which made no mention that Martha had begun another

treatment cycle in late 1992; and information obtained from the University

of Iowa confirming that Martha had completed a treatment cycle in August

and cancelled another that had been scheduled for January 1993. Although

the Ravenscrafts countered that Plan officials should have known that

Martha was in the middle of a new IVF treatment cycle when the amendment

took effect, the district court concluded that "the record supports a

finding that defendants' belief that [Martha] was between [IVF] treatments

was not arbitrary." In reviewing that conclusion de novo, as we must, it

is essential to identify the applicable ERISA summary judgment standard.

ERISA permits a plan beneficiary to sue "to recover benefits due to

him under the terms of the plan or to clarify his rights to future benefits

under the terms of the plan." 29 U.S.C.
-6-

§ 1132(a)(1)(B). The first issue in considering such a claim is whether

the appropriate standard of judicial review is de novo or deferential, an

issue that affects both the evidence admissible in the district court, and

the legal standard to be applied by the trial and appellate courts. See

Donatelli v. Home Ins. Co., 992 F.2d 763, 765 & n.2 (8th Cir. 1993). Here,

the Ravenscrafts concede that the deferential standard applies; indeed,

they frame the issue as being whether defendants acted in an arbitrary and

capricious manner.

In conducting judicial review under the deferential standard, the

reviewing court looks to the evidence before the Plan administrators when

they denied the claim. See Oldenburger v. Central States, S.E. & S.W.

Areas Teamster Pension Fund, 934 F.2d 171, 174 (8th Cir. 1991). In their

claim to the Plan, the Ravenscrafts demanded IVF benefits for as long as

they might wish to continue those treatments, without disclosing the status

of Martha's treatment when the Plan amendment took effect. However, well

into the summary judgment process, the Ravenscrafts offered new evidence

in support of the more modest theory that they were entitled to benefits

for the uncompleted third IVF treatment cycle. This claim was never

presented to the Plan administrators, and defendants responded with

compelling evidence that the Plan administrators did not know Martha

Ravenscraft had begun a third IVF cycle when the amendment took effect.

The district court, applying the deferential standard of review urged by

the Ravenscrafts, correctly concluded that the Plan administrators' denial

of the Ravenscrafts' claim was not arbitrary and capricious as a matter of

law. See Oldenburger, 934 F.2d at 174.

Before leaving this issue, we note a further complexity. "[A] denial

of benefits challenged under § 1132(a)(1)(B) is to be reviewed under a de

novo standard unless the benefit plan gives the administrator discretionary

authority to determine eligibility for benefits or to construe the terms

of the plan." Firestone Tire &
 The claim and benefit provisions read like a typical

2

insurance policy, which is not surprising since the Plan

Administrator is an insurance company. Such provisions do not

trigger the deferential ERISA standard of review. See Bounds v.

Bell Atl. Enters. Flexible Long-Term Disability Plan, 32 F.3d 337,

339 (8th Cir. 1994).

-7-

Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989). We find no Plan provision

conferring discretionary authority to decide benefit claims. In other

2

words, the Ravenscrafts erred in arguing this issue under the deferential

standard of review. Moreover, under the de novo standard of review, a

district court for good cause shown "may allow the parties to introduce

evidence in addition to that presented to the fiduciary." Donatelli, 992

F.2d at 765. However, the Ravenscrafts did not show cause for their

eleventh-hour change of theory and new evidence, and they did not urge the

district court to apply the principles of de novo review. In these

circumstances, it was not plain error for the district court to apply the

deferential standard of review and dismiss this claim. 

4. Finally, the Ravenscrafts argue that the Plan is estopped to

terminate continuing IVF benefits in progress. However, estoppel

principles are relevant in a beneficiary's action to recover benefits under

§ 1132(a)(1)(B) only in the context of judicially reviewing the Plan

fiduciary's denial of benefits under the applicable de novo or deferential

standard of review. Estoppel may not otherwise be employed to vary the

terms of an ERISA plan. See Houghton v. SIPCO, Inc., 38 F.3d 953, 958 (8th

Cir. 1994); Slice v. Sons of Norway, 34 F.3d 630, 632-33 (8th Cir. 1994).

The judgment of the district court is affirmed.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.