Answer
The short answer
Mostly by whether your employer buys insurance or pays claims itself. Insured coverage in a qualifying state uses that state's external review; a self-funded plan usually does not. A handful of states run no process at all.
Because the card in your wallet does not tell you who is actually paying. A large employer commonly pays claims out of its own money and hires an insurance company to administer the plan. The logo is the same; the legal machinery underneath is not.
That difference decides which external review process you get after your internal appeal fails, and the two processes have different rules about who runs them and what they can charge you.
The regulation sorts it in three steps rather than one, and the middle step is the one that gets summarized wrongly everywhere.
If your coverage is insured and your state runs a process that meets the federal minimum standards, the insurer has to use that state process. If your plan is self-insured, it is normally outside state insurance regulation and lands in the federal process — but not always. The text contemplates a self-insured plan being bound by a state process where that process is not preempted, and it contemplates a state choosing to open its process to plans it does not otherwise cover, in which case the plan may choose either. Anyone telling you that self-funded always means federal is compressing three outcomes into one.
If neither of those applies, the plan or issuer must use the federal process. And there is a third thing that is easy to confuse with the second: the federal external review process, where the plan contracts with independent review organizations itself, is not the same as the federally administered process run by the Department of Health and Human Services. The regulation treats them as alternatives.
Your summary plan description says. So does your plan document, and so does the notice itself — a health plan's denial has to describe the available internal appeals and external review processes and how to start one, and to give you the contact details for your state's consumer assistance office or ombudsman.
If the letter does not tell you, that omission is itself worth raising, and the page on what a denial letter must contain sets out the rest of the list.
The government publishes the list, and the useful way to read it is backwards: it is shorter to name the states that do not run one. The federal agency's own consumer sentence names them, along with the territories, and everything else on its table sits in the column for states with a process meeting the federal standards.
One caution if you rely on it. The page carries two different dates — the table itself says it was updated in July 2024, while the page says it was last modified in August 2026 — and one row is annotated with an effective date later than the table's own update line. That inconsistency is on the published page, not in our reading of it, so confirm your own state before you act on the column it sits in.
Yes, and this is the most practical consequence of the split. In the federal process the rule is flat: the review may not impose any costs, including filing fees, on the claimant requesting it.
State processes work differently. The plan pays for the review, but a state that already authorized a nominal filing fee before the rule took effect may keep charging one — capped at $25 per review, refunded if you win, waived for hardship, and capped again at $75 across a plan year. Most people pay nothing. Nobody should be told external review costs $25 as though that were the norm.
Yes, and it expires soon, so read the date carefully. The federally administered process was unavailable for a period in 2026 and reopened at the end of July. The agency extended the filing window for people caught by that outage: if your deadline to request external review fell between July 1 and August 3, 2026, and your plan uses that process, you have until October 2, 2026 to file.
That is a response to an outage rather than a standing right, and it does not apply to anyone who already received a final decision. After October 2, 2026 this paragraph is history rather than a route, and the ordinary window is the one that governs.
If something here decides anything for you, read the source rather than our summary of it. These are the documents we opened, and the month we opened them.
Insured coverage follows a qualifying state process. The rule says that where a state external review process "includes at a minimum the consumer protections in the NAIC Uniform Model Act, then the issuer must comply with the applicable State external review process and is not required to comply with the Federal external review process of paragraph (d) of this section."
45 CFR §147.136(c)(1)(i), Electronic Code of Federal Regulations, effective August 2026 · source · read August 2026
A self-funded plan is not automatically in the federal process, and the text is careful about it. It covers a self-insured plan that is "subject to a State external review process that applies to and is binding on the plan (for example, is not preempted by ERISA)," and then adds: "Where a self-insured plan is not subject to an applicable State external review process, but the State has chosen to expand access to its process for plans that are not subject to the applicable State laws, the plan may choose to comply with either the applicable State external review process or the Federal external review process." Where neither route applies, "the plan or issuer must comply with the Federal external review process of paragraph (d) of this section."
45 CFR §147.136(c)(1)(ii) and (c)(1)(iii), Electronic Code of Federal Regulations, effective August 2026 · source · read August 2026
The regulation itself names no list of states. It says only that "The Department of Health and Human Services will determine whether State external review processes meet these requirements." The list is published separately by the agency, which is why a page citing the regulation for a state list is citing the wrong document.
45 CFR §147.136(c)(2), Electronic Code of Federal Regulations, effective August 2026 · source · read August 2026
The agency's own page names the states outside a state-run process, in a sentence written for consumers: "As of July 31, 2026, the HHS-Administered FERP is open again. If you live in Alabama, Florida, Georgia, Texas, Wisconsin, or a U.S. territory (other than Puerto Rico), your plan or issuer uses the HHS-administered FERP." ⚠ Read the page's dates before relying on the table beside that sentence: the table says "Table updated July 9, 2024" while the page prints a last-modified date in August 2026, and one state row is annotated with an effective date of January 2025, later than the table's own update line.
Centers for Medicare & Medicaid Services, Center for Consumer Information and Insurance Oversight · source · read August 2026
The federal process is free. "The IRO process may not impose any costs, including filing fees, on the claimant requesting the external review." State processes may charge a small fee only where they already authorized one: to be nominal "a filing fee must not exceed $25, it must be refunded to the claimant if the adverse benefit determination... is reversed through external review, it must be waived if payment of the fee would impose an undue financial hardship, and the annual limit on filing fees for any claimant within a single plan year must not exceed $75."
45 CFR §147.136(d)(2)(iii)(A)(4) and (c)(2)(iv), Electronic Code of Federal Regulations, effective August 2026 · source · read August 2026
There is a live, dated extension for people caught by an outage in the federally administered process. The agency states: "Effective July 31, 2026, the Department of Health and Human Services (HHS)-administered Federal External Review Process (FERP) is reopened," and that "Consumers for whom the deadline to request external review fell between July 1, 2026 and August 3, 2026 (the first full business day after the reopening of the HHS-administered FERP) will have until October 2, 2026, which is the 60th calendar day after August 3, 2026, to request external review with MAXIMUS." It adds that "This extension does not apply to consumers who have previously received a final decision through the HHS-administered FERP." ⚠ This window closes on October 2, 2026.
Centers for Medicare & Medicaid Services, HHS-administered Federal External Review Process Deadline Extension, effective July 2026 · source · read August 2026
The reviewer starts over rather than checking the insurer's work. "The IRO will review all of the information and documents timely received. In reaching a decision, the assigned IRO will review the claim de novo and not be bound by any decisions or conclusions reached during the plan's or issuer's internal claims and appeals process." You also get "ten business days following the date of receipt of the notice" to send additional information, which "must be considered by the IRO."
45 CFR §147.136(d)(2)(iii)(B), Electronic Code of Federal Regulations, effective August 2026 · source · read August 2026
The consumer version of the filing window, in the government's plain-language wording: "You must file a written request for an external review within 4 months after the date you receive a notice or final determination from your insurer that your claim has been denied." ⚠ This page prints no publication or revision date of its own; August 2026 is the month we read it.
HealthCare.gov · source · read August 2026
American GLP is not a law firm, an insurer, a government office or a clinician, and nothing here is legal or medical advice. This page describes what published rules say. Your own plan documents and your own notice govern your case, and rules change — check the sources before you act.