§2435. Exhaustion of internal claims and appeals process

            A.(1) Except as provided in Subsection B of this Section, a request for an external review pursuant to R.S. 22:2436 through 2438 shall not be made until the covered person has exhausted the health insurance issuer's internal claims and appeals process provided pursuant to R.S. 22:2401.

            (2) In addition, a covered person shall be considered to have exhausted the health insurance issuer's internal claims and appeals process for purposes of this Section, if both of the following conditions are met:

            (a) The covered person or his authorized representative, if applicable, has filed a grievance involving an adverse determination as provided pursuant to R.S. 22:2401.

            (b) Except to the extent the covered person or his authorized representative has requested or agreed to a delay, the covered person or his authorized representative has not received a written decision on the grievance from the health insurance issuer within thirty days following the date that the covered person or his authorized representative filed the grievance with the health insurance issuer.

            (3) Notwithstanding Paragraph (2) of this Subsection, a covered person or his authorized representative may not make a request for an external review of an adverse determination involving a retrospective review determination made pursuant to R.S. 22:2401 until the covered person has exhausted the health insurance issuer's internal claims and appeals process.

            B.(1)(a) At the same time that a covered person or his authorized representative files a request for an expedited review of a grievance involving an adverse determination as provided pursuant to R.S. 22:2401, the covered person or his authorized representative may file a request for an expedited external review of the adverse determination for either of the following:

            (i) Pursuant to R.S. 22:2437, if the covered person has a medical condition in which the time frame for completion of an expedited review of the grievance involving an adverse determination made pursuant to R.S. 22:2401 would seriously jeopardize the life or health of the covered person or would jeopardize the covered person's ability to regain maximum function.

            (ii) Pursuant to R.S. 22:2438, if the adverse determination involves a denial of coverage based on a determination that the recommended or requested health care service or treatment is experimental or investigational and the covered person's treating physician certifies in writing that any delay in appealing the adverse determination may pose an imminent threat to the covered person's health, including but not limited to severe pain, potential loss of life, limb, or major bodily function, or the immediate deterioration of the health of the covered person.

            (b) Upon receipt of a request for an expedited external review under Subparagraph (a) of this Paragraph, the independent review organization conducting the external review in accordance with the provisions of R.S. 22:2437 or 2438 shall determine whether the covered person shall be required to complete the expedited grievance review process as provided pursuant to R.S. 22:2401 before it conducts the expedited external review.

            (c) Upon a determination made pursuant to Subparagraph (b) of this Paragraph that the covered person must first complete the expedited grievance review process as provided pursuant to R.S. 22:2401, the independent review organization shall immediately notify the covered person and, if applicable, his authorized representative of this determination and that the independent review organization will not proceed with the expedited external review provided for by R.S. 22:2437 or 2438 until completion of the expedited grievance review process if the covered person's grievance at the completion of the expedited grievance review process remains unresolved.

            (2) 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 pursuant to R.S. 22:2401 whenever the health insurance issuer agrees to waive the exhaustion requirement.

            (3) 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 pursuant to R.S. 22:2401 whenever the health insurance issuer fails to adhere to requirements pursuant to R.S. 22:2401. Notwithstanding the provisions of this Paragraph, the internal claims and appeals process will not be deemed exhausted based on de minimis violations that do not cause, and are not likely to cause, prejudice or harm to the claimant so long as the health insurance issuer demonstrates that the violation was for good cause or due to matters beyond the control of the health insurance issuer and that the violation occurred in the context of an ongoing, good faith exchange of information between the health insurance issuer and the claimant. This exception shall not be available if the violation is part of a pattern or practice of violations by the health insurance issuer.

            C. If the requirement to exhaust the health insurance issuer's internal grievance procedures is waived under Paragraph (B)(2) of this Section, the covered person or his authorized representative may file a request in writing for a standard external review as provided for by R.S. 22:2436 or 2438.

            Acts 2013, No. 326, §1, eff. Jan. 1, 2015.