UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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).

_________________________________________________________________

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 Tri-
gon 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
_________________________________________________________________
1 Under the Plan, benefits are provided only for services that are medi-
cally 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 deter-
          mines:

          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 preauthor-
ization 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 allevi-
ate the affects of post-polio syndrome. OPM requested that the Plan
provide a report on the claim and also requested that its Medical Offi-
cer review the claim. The Plan furnished a report in which it stated
the medical procedure requested was "non-covered" and "not medi-
cally 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 carri-
ers to provide federal employees and retirees with health care bene-
fits. See 5 U.S.C. § 8902(a) (1994). Federal employees enroll in a
plan approved by OPM, and OPM is authorized to decide what bene-
fits 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,
_________________________________________________________________

          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 educa-
          tion 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 deci-
sion 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 qual-
ify 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 conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.

AFFIRMED

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