National Association of the Deaf

The National Association of the Deaf (NAD) applauds a recent Federal Communications Commission (FCC) notice of clarification that deaf or hard of hearing patients can discuss confidential medical concerns and issues with their health care providers without violating the Privacy Rule of the Health Insurance Portability and Accountability Act (HIPAA). This supports NAD efforts to educate health care providers of their obligations to provide full access to their patients over the telephone.

The Americans With Disabilities Act of 1990 required that the telephone system become accessible to deaf and hard-of-hearing individuals. This accessibility was enabled through the development of TRS, including TTY Relay Services, Internet Protocol (IP) Relay Services, Video Relay Services (VRS), and Speech-to-Speech Services(STS). Relay services allowed deaf and hard of hearing people to communicate freely and efficiently via telephone with others, including their health care providers.

The HIPAA, passed in 1996, required the implementation of federal privacy protection rules for patients’ health information. The Department of Health and Human Services (HHS) subsequently developed the Privacy Rule, which required the consent of patients before releasing personal and medical information to third parties. This led to misunderstanding by health care providers as they viewed relay communication assistants as “third parties.” As a result, many health care providers refused to discuss personal and medical information on the phone with their deaf and hard of hearing patients.

Some health care professionals, in an attempt to avoid violating the Privacy Rule, have required all the CAs on the staff of local relay centers to sign third-party nondisclosure forms before they will use TRS to contact patients or accept calls through TRS. This confusion over whether CAs constitute a third party has caused concerns for many people and organizations, including the NAD, about the speed and efficiency of communicating essential medical information and obtaining medical care for deaf and hard of hearing individuals.

“The FCC’s clarification will go a long way in clearing up misunderstandings by health care providers. The NAD will continue to work to ensure that deaf and hard of hearing individuals have full access to medical information and services,” commented Kelby Brick, Director of Law and Advocacy.

In the Public Notice released on June 16, 2004, the FCC emphasizes that “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”).”

You can read the FCC's Public Notice about TRS and HIPAA below:

FCC Public Notice
Federal Communications Commission

DA 04-1716
Released: June 16, 2004

CLARIFICATION OF THE USE OF TELECOMMUNICATIONS RELAY SERVICES (TRS) AND THE HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT (HIPAA)

The Federal Communications Commission (FCC) has been working with the Department of Health and Human Services (HHS) to clarify that the use of Telecommunications Relay Services (TRS) 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). The Commission has received inquiries on this issue from TRS users and providers. We take this opportunity to clarify 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”).

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. 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.

HHS enacted HIPAA in 1996, which included provisions mandating the adoption of federal privacy protections for individual’s health information. 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.

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/hipaaor on the FCC’s Disability Rights Office’s website at http://www.fcc.gov/cgb/dro/trs.html.

The full texts of these documents are 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. These documents 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 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 Format at http://www.fcc.gov/cgb.dro.

Consumer & Governmental Affairs Bureau Contact: Traci Randolph, (202) 418-0569 (voice), (202) 418-0537 (TTY); e-mail traci.randolph@fcc.gov.