The Rise and Withdrawal of the Requestor Preferences Exception under the Information Blocking Rule: Implications for Radiology Providers and Test Result Embargoes

In August 2024, the U.S. Department of Health and Human Services (HHS), inter alia, proposed a new information blocking exception – the Requestor Preferences Exception – that would have allowed healthcare providers to tailor a patient’s electronic access to their health information based on the patient's stated preferences. Sixteen months later, in December 2025, HHS withdrew the proposal as part of a sweeping deregulatory initiative from the Trump Administration. This regulatory about-face has significant implications for radiology providers and others seeking flexibility under the federal information blocking rule codified at 45 CFR Part 171.

ACR’s Stated Position on the Requestor Preferences Exception

The American College of Radiology (ACR), representing more than 40,000 diagnostic radiologists, interventional radiologists, radiation oncologists, nuclear medicine physicians, and medical physicists, submitted comments on both proposed rules. ACR’s position on the Requestor Preferences Exception underscores the practical implications of this regulatory development for radiology practice.

In its September 2024 comments, ACR expressed general support for the proposed Requestor Preferences Exception, stating that it supported “the flexibility of the newly proposed exception.” However, ACR raised concerns that the regulatory language prohibiting “improper encouragement or inducement by the actor” was “open to varying interpretations.” ACR recommended that HHS clarify in the preamble that provider-actors could routinely request preference information from patients via standardized form questions – for example, during routine check-in for a medical procedure or other appointment – to make the exception “accessible and actionable” for radiology providers.

Following HHS’s December 29, 2025 proposal to withdraw the exception, ACR filed comments in February 2026 urging HHS to codify – rather than withdraw – the Requestor Preferences Exception. ACR maintained that “such flexibility is generally useful for providers to have confidence in ethically sharing test results in accordance with their patients’ timeframe and condition expectations.” In ACR’s view, the exception would have allowed radiology providers to tailor patient access to electronic health information – such as radiology reports and images – based on patient preferences, enabling providers to share test results on the patient’s preferred timeframe without triggering information blocking liability.

HHS Guidance Provides Limited Clarity; thus, Codification is Preferred

ACR also noted that, even absent the codified exception, existing HHS guidance provides considerable flexibility. Specifically, ACR referenced a 2022 guidance document from the Assistant Secretary for Technology Policy (ASTP) and the Office of the National Coordinator for Health IT (ONC) that “already provides helpful information to educate providers about their ability to collect and carry out patient preferences.” This guidance, available through ONC’s Frequently Asked Questions (FAQ) resources on information blocking, addresses scenarios where providers may honor patient requests regarding the timing and manner of electronic health information (EHI) access without triggering information blocking liability. While ACR acknowledged this existing guidance as helpful, it continued to prefer codification of the exception in regulation to provide greater certainty to providers.

But that same FAQ cites favorably another FAQ that says, “[i]t would likely be considered an interference for purposes of information blocking if a health care provider established an organizational policy that, for example, imposed delays on the release of lab results for any period of time in order to allow an ordering clinician to review the results or in order to personally inform the patient of the results before a patient can electronically access such results.” That FAQ cites to the 21st Century Cures Act Interoperability, Information Blocking and the ONC Health IT Certification Program Final Rule from 2020 (The 2020 Cures Act Rule), which specified that such a practice does not qualify for the “Preventing Harm Exception” under the rules. 

Analysis: Test Result Embargoes and Information Blocking Risk

The withdrawal of the Requestor Preferences Exception comes at a time when several states have enacted laws requiring or permitting delays in the electronic release of certain test results – creating potential tension with federal information blocking rule. This regulatory landscape warrants careful consideration by healthcare providers.

As we discussed in our prior blog post on Texas Senate Bill No. 922, states including Texas and Kentucky have enacted laws permitting or requiring delays before certain sensitive test results may be electronically disclosed to patients. The Texas law, effective September 1, 2025, requires a 72-hour delay on the electronic release of pathology or radiology reports with a “reasonable likelihood of showing a finding of malignancy,” as well as test results that may reveal a genetic marker. Under that law, sensitive test results may not be disclosed by electronic means until the third calendar day after results are finalized – giving ordering/treating physicians time to communicate directly with patients before patient portal release. Similar concerns have arisen in connection with Kentucky’s law mandating embargoes of certain sensitive test results. These state laws reflect a policy judgment that ordering/treating physician-mediated communication of potentially distressing diagnoses serves patient interests – even at the cost of delayed electronic access.

The federal information blocking rule, however, generally requires the timely release of finalized test results through electronic health record systems and patient portals. Under 45 CFR Part 171, practices that are “likely to interfere with access, exchange, or use of electronic health information” may constitute information blocking unless “required by law or covered by an exception.” Healthcare providers found to have committed information blocking face disincentives under 45 CFR 171.1001, and their names and the practices found to constitute information blocking may be posted on ONC’s public website under 45 CFR 171.1101.

The federal information blocking rule explicitly recognizes that practices “required by law” do not constitute information blocking.  In the preamble to the 2020 Cures Act Rule, ONC specified that legal requirements – including “[Federal and State] statutes, regulations, court orders, binding administrative decisions or settlements, . . . and tribal laws, as applicable” – are excluded from the definition of information blocking. Thus, complying with a state law like Texas Senate Bill No. 922 that mandates delay of sensitive test results during the statutory window should not be considered information blocking.

However, this “required by law” exclusion is limited. As we cautioned in our Texas Senate Bill No. 922 blog post, the exclusion applies only during the period the state law requires the embargo. After the statutory delay period expires – 72 hours in the case of Texas – the federal information blocking rule applies with full force. Healthcare providers and others subject to the federal information blocking rule must ensure that no further unreasonable delays occur unless another exception applies, especially in light of HHS’s increased enforcement efforts regarding health information blocking.

The withdrawal of the Requestor Preferences Exception heightens these concerns. Had the exception been finalized, healthcare providers could have honored patient preferences for delayed EHI access – such as a patient’s request not to receive test results in the patient portal until the ordering/treating physician has reviewed them – without incurring liability under the federal information blocking rule. Without this exception, healthcare providers must rely on other exceptions that may or may not apply to the circumstances, or on regulatory guidance that lacks the legal force of regulation.

The existing Privacy Exception under 45 CFR Part 171 includes a sub-exception at 45 CFR 171.202(e) for honoring an individual's request not to share EHI. This sub-exception may provide some protection for practices where a patient affirmatively requests restrictions on EHI sharing. However, this exception requires that the patient initiates the request without improper encouragement or inducement by the actor – and it focuses on the patient’s request not to share information with third parties, rather than on tailoring the timing or conditions of the patient’s own access to their information.

The differing requirements between state laws mandating embargoes and the federal information blocking rule have created uncertainty for healthcare providers about which rules to follow and how to comply. Healthcare providers operating in states with mandatory embargo laws must carefully assess: (1) whether their practices fall within the “required by law” exclusion; (2) how long that protection lasts; and (3) what other exceptions, if any, may apply once the statutory embargo period expires. This compliance challenge is particularly acute for radiology providers whose test results may be subject to state embargo requirements.

Conclusion

The withdrawal of the Requestor Preferences Exception represents a missed opportunity to provide regulatory clarity for healthcare providers seeking to honor patient preferences regarding the timing of EHI access. While ACR and other stakeholders supported the exception as a means of enabling ethical, patient-centered communication of test results, HHS’s deregulatory priorities have foreclosed this approach for the present.

Healthcare providers – particularly radiology services providers subject to state embargo laws – must continue to navigate the intersection of state requirements and federal information blocking rule. The “required by law” exclusion provides protection during mandatory state embargo periods, but providers should remain vigilant to ongoing federal enforcement efforts and should review their policies and electronic health record configurations to ensure compliance with both state and federal requirements after any statutory delay period expires.

Reed Smith will continue to monitor developments concerning electronic health information release regulations at both state and federal levels. If you have any questions about this client alert, seek guidance specific to your business, please do not hesitate to contact the authors or your health care attorneys at Reed Smith.