The Department of Health and Human Services’ Office for Civil Rights (“OCR”) has issued guidance that specifically addresses whether a Telecommunications Relay Service (“TRS”) Provider, such as CaptionCall is required to enter into a business associate agreement with a health care provider or other HIPAA covered entity. OCR has concluded that “a business associate contract is not required” when a covered health care provider and a patient communicate through TRS. No business associate agreement is required because the TRS [provider]

CaptionCall also is not a “business associate” when it accepts a certification for a new user. First, the certification generally will be transmitted to CaptionCall pursuant to the express, written consent of the patient, which likely eliminates the need for a business associate agreement. Even if that is not the case, CaptionCall is not receiving patient information or providing service “on behalf of” that provider, nor is it providing services—such as accounting, administrative, or legal work—to the covered provider. Instead, CaptionCall is receiving patient information in order to provide relay services to the patient. Thus, no business associate agreement is required solely because CaptionCall receives a certification from a covered provider.

is not acting for or on behalf of the covered entity and is not the covered entity’s business associate.”