A business associate agreement is a contract to govern the disclosure and
use of protected health information entered into by a "covered entity" (such
as a health plan or health care provider) and a "business associate," as
those terms are defined in regulations implementing the U.S. Health
Insurance Portability and Accountability Act of 1996.
Neutrals are not business associates because they do not perform delegated
functions on behalf of a covered entity. Arbitration and mediation are not
routine operational or administrative functions that a covered entity could
itself perform. Neutrals do not stand in the shoes of either party to mediation
and arbitration proceedings.
Moreover, neutrals are not engaged to perform legal services for a covered
entity. An agreement to arbitrate or mediate is a mutual agreement by all party
litigants to appoint a neutral or to vest an administering organization with
authority to appoint a neutral. The neutral serves the parties' shared
interest in resolving litigation privately and confidentially. To be effective,
a neutral must be, and be perceived as, independent, i.e., having no allegiance
or attachment to a single party or party representative.
An attorney who serves as an arbitrator or mediator should make it clear to the
parties that he or she is not performing legal services for either party, and
there is no attorney-client relationship between them. Because mediation and
arbitration are not legal services, neutrals need not be, and often are not,
lawyers. The work they perform, therefore, is not and cannot be considered
"legal services" within the definition of a business associate, or otherwise.
A covered entity's demand for a business associate agreement puts a neutral in
an untenable position. Refusing to sign could lock the neutral into a legal
battle with the covered entity from which he or she would be hard pressed to
emerge with the covered entity's trust and respect. Conversely, if the neutral
accedes to the covered entity's demand, even though an agreement is not
required, this can create a false impression that the neutral is partial, having
assumed the role of a business associate, or that an attorney-client
relationship exists between the neutral and the covered entity. Moreover, an
arbitrator could not negotiate the terms of a business associate agreement
because negotiating would require ex parte contact with the covered entity,
which is strictly forbidden. Similarly, it is hard to imagine how a mediator
could negotiate without appearing to have made concessions, which would
compromise his or her neutrality.
In conclusion, the Dispute Resolution Service recommends against parties asking
neutrals to sign business associate agreements and against neutrals agreeing to
 See 45 C.F.R. § 160.103; 65 Fed. Reg. 82,462, 82,476 (Dec. 28,
 This is often done under the auspices of a dispute resolution administrator
such as the American Health Lawyers Association.
 See ABA Model Rules of Professional Conduct R. 2.4(b)"
 Many of the neutrals on our roster do not have a law degree. Physicians with
mediation training can be highly effective in resolving some of the most
sensitive health care disputes.
 See The Code of Ethics for Arbitrators in Commercial Disputes, Canon III,
available at https://www.healthlawyers.org/dr/Pages/default.aspx.
 See Model Standards of Conduct for Mediators, Standard III (A), available here