                                 ___________

                                 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 court1 granted summary
judgment dismissing their ERISA claims, and the Ravenscrafts appeal.    We
affirm.




     *
      The HONORABLE CHARLES R. WOLLE, Chief Judge of the United
     States District Court for the Southern District of Iowa,
     sitting by designation.
     1
     The HONORABLE HAROLD D. VIETOR, United States District Judge
for the Southern District of Iowa.
     Martha Ravenscraft is employed by Hy-Vee Food Stores, Inc. ("Hy-
Vee").   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.




                                      -2-
     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.




                                     -3-
        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




                                     -4-
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.




                                    -5-
§ 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 &




                                     -6-
Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989).        We find no Plan provision
conferring discretionary authority to decide benefit claims.2           In other
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.




         2
         The claim and benefit provisions read like a typical
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-
