### The HONORABLE CHARLES R. WOLLE, Chief Judge of the Unite d * 

### States District Court for the Southern District of Iowa, sitting by designation. The HONORAB LE 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 Judg es, and WOLLE, Chief District Judge. *

___________ LOKEN, Circuit Judge.

Martha and Jeff Ravenscraft challenge the denial of benefits unde r
a health care plan governed by the Employee Retirement Income Security Act , 29 U .S.C. §§ 1001 et seq. ("ERISA"), claiming that Martha's employe r improp erly amended the plan and then terminated coverage of medica l expenses f or 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. ("Hy

Vee"). She and her husband Jeff are eligible for health benefits under th e Hy- Vee Benefit Plan and Trust (the "Plan"), an employee welfare benefi t plan unde r ERISA. See 29 U.S.C. § 1002(1). Martha underwent a tuba l ligation sterilization procedure in 1986, but by the Spring of 1992 th e Ravenscrafts had decided they would like to have another child.
Because the Plan does not cover medical expenses to reverse vol untary steril ization, Martha inquired whether the Plan would cover in vitr o fertil ization ("IVF") treatment, a procedure that in some cases ha s achieved conception without surgically reversing prior sterilization. The Plan's Benefit Coordinator responded, "it appears the treatment would be a covered benefit [un der] our plan, subject to all plan provisions." The Ravenscrafts then began IVF treatment at the Uni versity 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 tha t 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 i t is inc onsistent to cover IVF expenses but not sterilization reversa l expenses. Accordingl y, 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 thi s amendme nt in December 1992, and Jeff telephoned to complain about th e change in coverage. The amendment took effect o n 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 "restor e infertilitytreatment 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 Februar y 1994 against Hy-Vee and the Plan. Defendants removed, and both sides move d for su mmary judgment. The district court granted defendants' motion , dismissing the complaint in its entirety. The Ravenscrafts appeal th e dismissal of their ERISA claims.

1. In the district court, the Ravenscrafts argued that the Pla n amendment eliminating coverage of IVF treatment expenses is invalid becaus e 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. Se e 29 U. S.C. § 1102(b)(3). On appeal, the Ravenscrafts concede that thi s argument is foreclosed by Curtiss-Wright Corp. v. Schoonejongen , 115 S. Ct

. 1223, 1228-29 (1995), which held that a disclosu re generally reserving the employer's right to amend the plan satisfies § 1102(b)(3). However, the Ravenscrafts argue that defendants nonetheless violated ERISA disclosure obl igations because they did not disclose that the Plan's trustees mus t fina lly approve Plan amendments that "change substantially the powers , duties, or liabilities of the Trustees," including amendments changing Pla n benefits.
We doubt that the proper remedy for such a disclosure violationwould be to invalidate the plan amendment. But we put that question asid e because the Ravenscrafts' disclosure theory fail s 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 Schoonej ongen , 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 i s 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 co rrectly dismissed the Ravenscrafts' ERISA disclosure claim.

### -4- 2. The Ra venscrafts next argue that Hy-Vee abused its discretion by amending the Plan to terminate coverage for IVF treatments. ERISA does no t provide a right to benefits under an employee we lfare 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 terminat e health benefits." Jo hn 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 questio n is not subject to judicial review for abuse of discretion.

3. The Ravenscrafts next argue that defendants were arbitrary an d capricious in applying the January 1993 Plan ame ndment to deny their claim for continuing IVF be nefits. That broad issue was presented in counsel's dem and letter to the Plan Director -- he asserted that the Benefi t Coordinator obligated the Plan to provide those benefits for as long as th e Ravenscrafts continued IVF treatments when the Benefit Coordinator wrote to inform Martha that IVF treatments were covere d. Defendants denied this claim, explaining that each IVF treatment cycle is a separate medica l proced ure and therefore the amendment precludes coverage for IVF cycle s that begin after its effective date.
In their summary judgment memorandum to the district court, however, the Ra venscrafts argued a more limited and factually different theory

. Theysubmitted an affidavit that Martha had begun a third cycle of IV F treatments in November 1992 and would have conti nued that cycle in January 1993 had the Plan amendment not caused her to cancel. Pointing t o defenda nts' interrogatory answer admitting that "if a member was in a treatment cycle prior to a change in plan coverage, said member would be allo wed to complete that particular treatment cycle," and to a Trus t Agreement

### -5-

provision that no amendment to that Agreement ma y result in a reduction of benefits payable on account of a pre-existing "s ickness," the Ravenscrafts
now argued that defendants were arbitrary and capricious in invoking the amendm ent to terminate coverage of their on-going third IVF treatmen t 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 (8t h 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 submitte d an affidavit by the Plan Director averring tha t 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-Ve e's business record of the December 21, 1992, te lephone 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 ob tained 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 Ra venscrafts countered that Plan officials should have known tha t Martha was in the middle of a new IVF treatment cycle when the amendment took ef fect, the district court concluded that "the record supports a finding that defendants' belief that [Martha] wa s 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 per mits a plan beneficiary to sue "to recover benefits due to him under the terms of the plan or to clarify his rights to future benefit s 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 stand ard 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 co nducting judicial review under the deferential standard, th e reviewing court looks to the evidence before the Plan administrators when theydenied the claim. See Oldenburger v. Central States, S.E. & S.W

. Areas Teamster Pensio n Fund , 934 F.2d 171, 174 (8th Cir. 1991). In their claimto the Plan, the Ravenscrafts demanded IVF benefits for as long as they might wish to continue those treatments, without disclosing the statu s 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 neve r prese nted to the Plan administrators, and defendants responded wit h compel ling evidence that the Plan administrators did not know Marth a 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 P lan administrators' denial of the Ravenscrafts' claim was not arbitrary andcapricious 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 challenge d under § 1132(a)(1)(B) is to be reviewed under a de

novo standard unless the benefit plan gives the administrator discretionar y authority to determine eligibility for benefits or to construe the terms of the plan." Firestone Tire &

### The claim and benefit provisions read like a typica l 2 

### insura nce policy, which is not surprising since the Pla n Administrator is an insurance company. Such provisions do no t trigger the deferential ERISA standard of review. See Bounds v

. Bell Atl. Enters. Flexible Lon g-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 conferri ng discretionary authority to decide benefit claims. In othe r 2 words, the Ravenscraf ts 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 introduc e evidence in addition to that presented to the fiduciary." Donatelli , 992 F.2d a t 765. However, the Ravenscrafts did not show cause for thei r 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 thes e circumstances, it was not plain error for the district court to apply the deferential standard of review and dismiss this claim. 4. Finall y, the Ravenscrafts argue that the Plan is estopped t o ter minate continuing IVF benefits in progress. However, estoppe l principles are relevant in a beneficiary's action to recover benefits unde r § 11 32(a)(1)(B) only in the context of judicially reviewing the Pla n fiduciary's denial of benefits under the applica ble de novo or deferential standard of review. Estoppel may not otherwise be employed to vary th e terms of an ERISA plan. See Houghton v. SIPCO, Inc. , 38 F.3d 953, 958 (8t h 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.