This chapter establishes the manner in which carriers and private review agents acting on behalf of carriers may apply utilization review criteria and impose documentation requirements to the surgical treatment of the morbid obesity benefit mandated by Insurance Article, §15-839, Annotated Code of Maryland. In this chapter, the following terms have the meanings indicated. Terms Defined. “Body mass index” has the meaning stated in Insurance Article, §15-839, Annotated Code of Maryland. “Carrier” means an insurer, a nonprofit health service plan, or a health maintenance organization. “Commissioner” means the Maryland Insurance Commissioner. “Health maintenance organization” has the meaning stated in Health-General Article, §19-701, Annotated Code of Maryland. “Insurer” has the meaning stated in Insurance Article, §1-101, Annotated Code of Maryland. “Member” means an individual who is covered by a contract that: Is issued or delivered by a carrier in the State; and Includes a benefit for the surgical treatment of morbid obesity. “Morbid obesity” has the meaning stated in Insurance Article, §15-839, Annotated Code of Maryland. “Nonprofit health service plan” means a person who has received a certificate of authority from the Commissioner to act as a nonprofit health service plan in the State. “Private review agent” has the meaning stated in Insurance Article, §15-10B-01, Annotated Code of Maryland. “Utilization review” has the meaning stated in Insurance Article, §15-10B-01, Annotated Code of Maryland. When establishing utilization review criteria for the surgical treatment of morbid obesity as a covered benefit under Insurance Article, §15-839, Annotated Code of Maryland, a carrier or a private review agent acting on behalf of a carrier: Shall limit the criteria to the permissible criteria listed in §B of this regulation; and May not use any criteria that is more restrictive to the member than the criteria listed in §B of this regulation. Permissible Criteria for Utilization Review Decisions. Body Mass Index. Except as permitted under §B(1)(b) of this regulation, a carrier or a private review agent acting on behalf of a carrier shall consider a member to meet the body mass index criterion if the member has a body mass index greater than 40 kilograms per meter squared. If the member has a comorbid medical condition, the carrier or private review agent acting on behalf of the carrier may not impose the criterion described in §B(1)(a) of this regulation, but shall consider the member to meet the body mass index criterion if the member has a body mass index equal to or greater than 35 kilograms per meter squared. In determining whether the member has a comorbid medical condition under §B(1)(b) of this regulation, the carrier or the private review agent acting on behalf of the carrier shall consider the member to have a comorbid condition if the member has one of the following conditions: Hypertension; A cardiopulmonary condition; Sleep apnea; Diabetes; or Any life threatening or serious medical condition that is weight induced. The carrier or private review agent acting on behalf of the carrier may establish a utilization review criterion that limits the benefit for surgical treatment of morbid obesity to adults who are 18 years old or older. The carrier or private review agent acting on behalf of the carrier may establish a utilization review criterion that requires the member to complete a psychological examination of the member's readiness and fitness for surgery and the necessary postoperative lifestyle changes before undergoing surgical treatment of morbid obesity. Completion of a Structured Diet Program. If a carrier or a private review agent acting on behalf of a carrier establishes a criterion that requires a member to complete a structured diet program, the carrier or private review agent acting on behalf of the carrier may not establish a criterion that is more restrictive than described in §B(4)(b) of this regulation. The carrier or the private review agent acting on behalf of the carrier shall consider the member to have completed a structured diet program, if the member completes either of the following in the 2-year period that immediately precedes the request for the surgical treatment of morbid obesity: One structured diet program for 6 consecutive months; or Two structured diet programs for 3 consecutive months. A carrier or a private review agent acting on behalf of a carrier shall use flexibility with regard to defining a structured diet program. A carrier or a private review agent acting on behalf of a carrier shall consider commonly available diet programs, such as Weight Watchers or Jenny Craig, to be structured diet programs. The carrier or private review agent acting on behalf of the carrier shall accept any one of the items listed in §B of this regulation as acceptable documentation that the member has completed the structured diet program required by Regulation .03B(4) of this chapter. Acceptable documentation of completion of a structured diet program includes: Physician notes; Notes of health care providers, other than physicians; Receipts of payment for a structured diet program; or Diet or weight loss logs from a structured diet program. Insurance Article, §§2-109(a)(1) and 15-893, Annotated Code of Maryland; Ch. 301, Acts of 2005 Effective date: April 10, 2006 (33:7 Md. R. 676)