BY Phuong Nguyen, Esq. and Michael Alexander, Esq., Brown & Fortunato, P.C.
Earlier this year, we wrote about the information blocking provisions of the 21st Century Cures Act (the “Cures Act”) and concerns related to the requirement to disclose medical information, particularly lab results. A new Texas law was passed that appears to largely address those concerns by requiring a 3-day delay for sensitive lab results. To recap, the Cures Act was passed in 2016 and included provisions that addressed the operation and use of electronic medical record systems. Among other things, the Cures Act prohibited the practice of “information blocking,” which was defined as a practice, except as required by law, that is likely to interfere with, prevent, or materially discourage access, exchange, or use of electronic health 
information.
The Office of the National Coordinator for Health Information Technology (“ONC”) within the Department of Health and Human Services is responsible for rulemaking related to the Cures Act. In the rulemaking process, the question was raised whether a health care provider may delay the release of medical information, such as lab results, to a patient’s electronic health information portal until the health care provider has had an opportunity to review the results or communicate the results to the patient. Some commentators advocated for time-delayed lab results when consistent with a health care provider’s policy. Other commentators focused concern on releasing sensitive lab results or diagnoses through a patient portal without allowing the treating provider to first communicate the results or diagnoses. Although the information blocking regulations contain several exceptions, the ONC declined to issue an exception to specifically address the delay of lab results. At the time, the ONC suggested that delaying lab results could fit an existing exception for reducing risk of harm to a patient if the health care provider made a case-by-case, individualized determination of risk. Absent such individualized determination of risk, the ONC would likely view a routine delay of lab results as interference in violation of the information blocking regulations.
In commentary, the ONC noted that a delay of lab results would be permissible when such delay is required, or release is prohibited, by other laws:
Where otherwise applicable law prohibits a specific access, exchange, or use of information, an exception to part 171 is not necessary due to the exclusion of ‘‘required by law’’ practices from the statutory information blocking definition in section 3022 of the PHSA.
85 Fed. Reg. 25642, 25825 (May 1, 2020). At that time, however, no Texas law prohibited the immediate release of lab results.
Fast forward to this year. In May of this year, Texas enacted Senate Bill 922, to be effective September 1, 2025, which provides that sensitive test results may not be disclosed to a patient or patient representative by electronic means before the third day after the date the sensitive test results are finalized. In other words, Texas law will require a three-day delay of sensitive test results. The new law defines a sensitive test result as a pathology report or radiology report that has a reasonable likelihood of showing a finding of malignancy or test result that may reveal a genetic marker. The new law places the burden of implementing the 3-day delay on the person who administers or controls the electronic health record. Health care providers will still need to comply with the information blocking provisions of the Cures Act, but will, starting September 1, have a little more time (i.e., 3 days) to directly communicate sensitive test results to patients before the results must be released as required by the Cures Act.