(a)

1. (1) Except as provided in subsection (b) of this section, a request for an external review pursuant to 23 CAR § 117-107, 23 CAR § 117-108, or 23 CAR § 117-109 shall not be made until the covered person has exhausted the health carrier’s internal appeal process.

2. (2) A covered person shall be considered to have exhausted the health carrier’s internal appeal process for purposes of this section if the covered person or the covered person’s authorized representative:

   1. (A) Has filed an appeal involving an adverse determination pursuant to the health carrier’s internal appeal procedure or utilization review procedure; and
   2. (B) Except to the extent the covered person or the covered person’s authorized representative requested or agreed to a delay, has not received a written decision on the appeal from the health carrier within thirty (30) days for a preservice claim or sixty (60) days for a post-service claim following the date the covered person or the covered person’s authorized representative filed the appeal with the health carrier.
3. (3) Notwithstanding subdivision (a)(2) of this section, a covered person or the covered person’s authorized representative may not make a request for an external review of an adverse determination involving a retrospective review determination made pursuant to the health carrier’s internal appeal procedure or utilization review procedure until the covered person has exhausted the health carrier’s internal appeal process.

(b)

1. (1)

   1. (A) At the same time a covered person or the covered person’s authorized representative files a request for an expedited review of an appeal involving an adverse determination as set forth in the health carrier’s internal appeal procedure or utilization review procedure, the covered person or the covered person’s authorized representative may file a request for an expedited external review of the adverse determination:

(b) (b) Jeopardize the covered person’s ability to regain maximum function; or

1. (ii) Under 23 CAR § 117-109 if the:

(b) (b) Covered person’s treating physician certifies in writing that the recommended or requested healthcare service or treatment that is the subject of the adverse determination would be significantly less effective if not promptly initiated.

1. (B) Upon receipt of a request for an expedited external review under subdivision (b)(1)(A) of this section, the independent review organization conducting the external review in accordance with the provisions of 23 CAR § 117-108 or 23 CAR § 117-109 shall determine whether the covered person shall be required to complete the expedited review process set forth in the health carrier’s internal appeal procedure or utilization review procedure before it conducts the expedited external review.

   1. (C) Upon a determination made pursuant to subdivision (b)(1)(B) of this section that the covered person must first complete the expedited appeal review process set forth in the health carrier’s internal review procedure or utilization review procedure, the independent review organization immediately shall notify the covered person and, if applicable, the covered person’s authorized representative of this determination and that it will not proceed with the expedited external review set forth in 23 CAR § 117-108 until:

      1. (i) Completion of the expedited appeal review process; and
      2. (ii) The covered person’s appeal at the completion of the expedited appeal review process remains unresolved.

2. (2) A request for an external review of an adverse determination may be made before the covered person has exhausted the heath carrier’s internal appeal procedures, as set forth in the carrier’s internal review procedure, whenever the health carrier agrees to waive the exhaustion requirement.

   1. (c) If the requirement to exhaust the health carrier’s internal appeal procedures is waived under subdivision (b)(2) of this section, the covered person or the covered person’s authorized representative may file a request in writing for a standard external review as set forth in 23 CAR § 117-107 or 23 CAR § 117-109.