Clarification of the Use of Telecommunications Relay Services (TRS) and the Health Insurance Portability and Accountability Act (HIPAA)

AGENCY:

Federal Communications Commission.

ACTION:

Notice.

SUMMARY:

In this document, the Commission clarifies that the use of Telecommunications Relay Services (TRS) programs to facilitate telephone calls between health care professionals and patients, when one of the parties to the call has a hearing or speech disability, does not violate the Privacy Rule of the Health Insurance Portability and Accountability Act (HIPAA). This document also clarifies that, consistent with HIPAA, a covered entity, such as a doctor or other health care professional, can contact a patient using TRS without requiring the TRS facility or individual communications assistants (CAs) to sign a disclosure agreement (what HIPAA generally refers to a “business associate contract”).

DATES:

Effective June 16, 2004.

ADDRESSES:

Federal Communications Commission, 445 12th Street, SW., Washington, DC 20554.

FOR FURTHER INFORMATION CONTACT:

Traci Randolph, (202) 418-0569 (voice), (202) 418-0537 (TTY), or e-mail traci.randolph@fcc.gov.

SUPPLEMENTARY INFORMATION:

This is a summary of the Commission's Public Notice, DA 04-1716 released June 16, 2004.

The full text of this document is available for public inspection and copying during regular business hours at the FCC Reference Information Center, Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC 20554. This document may be purchased from the Commission's duplicating contractor, Best Copy and Printing, Inc., Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554. Customers may contact BCPI, Inc. at their Web site: http://www.bcpiweb.com or call 1-800-378-3160.

To request this document in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an e-mail to fcc504@fcc.gov or call the Consumer & Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY). This Public Notice can also be downloaded in Word and Portable Formats at http://www.fcc.gov/cgb/dro.

Synopsis

As background, TRS, as mandated by Title IV of the Americans with Disabilities Act of 1990, makes the telephone system accessible to individuals with hearing or speech disabilities. See 47 U.S.C. 225. This is accomplished through TRS facilities that are staffed by specially trained CAs using special technology. The CA relays conversations between persons using various types of assistive communication devices and persons who do not require such assistive devices. Department of Health and Human Services (HHS) enacted HIPAA in 1996, which included provisions mandating the adoption of federal privacy protections for individual's health information. See Public Law Number 104-191 (1996). In response to the HIPAA mandate, HHS published the Privacy Rule, stating that as of April 14, 2003 (April 14, 2004, for small health plans), covered entities must implement standards to protect and guard against the misuse of individually identifiable health information. See 45 CFR Parts 160 and 164. Some health professionals have been concerned that contacting patients and discussing health related information via TRS poses a possible violation of the Privacy Rule because a “third party,” the TRS CA, hears the information being discussed as the call is relayed. Some state TRS facilities have informed the FCC that health professionals are requiring all of the facility's CAs to sign disclosure forms before they will use TRS to contact patients with hearing or speech disabilities.

We therefore emphasize that all forms of TRS, including “traditional” TTY based relay, Internet Protocol (IP) Relay, Video Relay Service (VRS), and Speech-to-Speech (STS), can be used to facilitate calls between health care professionals and patients without violating HIPPA's Privacy Rule. For further information on this issue see HHS's FAQ sheet which is available at http://www.hhs.gov/ocr/hipaa or on the FCC's Disability Rights Office's Web site at http://www.fcc.gov/cgb/dro/trs.html.