33-32-405. Exhaustion of internal grievance process. (1) Except as provided in subsections (2), (4), (5), and (6), a request for an external review pursuant to 33-32-410, 33-32-411, or 33-32-412 may not be made until the covered person has exhausted the health insurance issuer's internal grievance process provided for in Title 33, chapter 32, part 3.

(2) For the purposes of this section, a covered person is considered to have exhausted the health insurance issuer's internal grievance process if the covered person or, if applicable, the covered person's authorized representative:

(a) has filed a grievance involving an adverse determination pursuant to 33-32-308; and

(b) has not received a written decision on the grievance from the health insurance issuer within the time period provided in 33-32-308 or 33-32-309, as applicable, from the date the covered person or the covered person's authorized representative filed the grievance with the health insurance issuer except to the extent the covered person or the covered person's authorized representative requested or agreed to a delay.

(3) Except as provided in subsection (2), a covered person or, if applicable, the covered person's authorized representative may not request an external review of an adverse determination involving a retrospective review determination made pursuant to Title 33, chapter 32, part 3, until the covered person has exhausted the health insurance issuer's internal grievance process.

(4) (a) At the same time a covered person or, if applicable, the covered person's authorized representative files a request for an expedited review of a grievance involving an adverse determination under 33-32-308, the covered person or the covered person's authorized representative may file a request for an expedited external review of the adverse determination:

(i) under 33-32-411 if the covered person has a medical condition for which the timeframe for completion of an expedited review of the grievance involving an adverse determination provided for in 33-32-308 would seriously jeopardize the life or health of the covered person or would jeopardize the covered person's ability to regain maximum function; or

(ii) under 33-32-412 if the adverse determination involves a denial of coverage based on a determination that:

(A) the recommended or requested health care service or treatment is experimental or investigational; and

(B) the covered person's treating health care provider certifies in writing that the recommended or requested health care service or treatment that is the subject of the adverse determination would be significantly less effective if not promptly initiated.

(b) On receipt of a request for an expedited external review under subsection (4)(a), the independent review organization conducting the external review as provided under 33-32-411 or 33-32-412 shall determine whether the covered person must be required to complete the expedited review process for grievances provided for in 33-32-309 before an expedited external review can be conducted.

(c) Upon a determination made pursuant to subsection (4)(b) that the covered person must first be required to complete the expedited grievance review process provided for in 33-32-309, the independent review organization shall immediately notify the covered person or, if applicable, the covered person's authorized representative of this determination. The notification also must state that the independent review organization will not proceed with the expedited external review under 33-32-411 until:

(i) the expedited grievance review process under 33-32-309 is completed; and

(ii) the covered person's grievance at the completion of the expedited grievance review process remains unresolved.

(5) A request for an external review of an adverse determination may be made before the covered person has exhausted the health insurance issuer's internal grievance procedures as provided in 33-32-307 whenever the health insurance issuer agrees to waive the exhaustion requirement.

(6) If the requirement to exhaust the health insurance issuer's internal grievance procedures is waived under subsection (5), the covered person or, if applicable, the covered person's authorized representative may file a request in writing for a review under 33-32-410 or 33-32-412, as applicable.