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 such requests.
 See 45 C.F.R. § 160.103; 65 Fed. Reg. 82,462, 82,476 (Dec. 28, 2000).
 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