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                              2077-Can a CSP be considered to be a “conduit” like the postal service, and, therefore, not a business associate that must comply with the HIPAA Rules?


    

    

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Can a CSP be considered to be a “conduit” like the postal service, and, therefore, not a business associate that must comply with the HIPAA Rules?








  
  
    

  
      



Answer:

Generally, no. CSPs that provide cloud services to a covered entity or business associate that involve creating, receiving, or maintaining (e.g., to process and/or store) electronic protected health information (ePHI) meet the definition of a business associate, even if the CSP cannot view the ePHI because it is encrypted and the CSP does not have the decryption key.

As explained in previous guidance,[i] the conduit exception is limited to *transmission-only* services for PHI (whether in electronic or paper form), including any temporary storage of PHI incident to such transmission. Any access to PHI by a conduit is only *transient* in nature. In contrast, a CSP that maintains ePHI for the purpose of storing it will qualify as a business associate, and not a conduit, even if the CSP does not actually view the information, because the entity has more *persistent* access to the ePHI.

Further, where a CSP provides transmission services for a covered entity or business associate customer, in addition to maintaining ePHI for purposes of processing and/or storing the information, the CSP is still a business associate with respect to such transmission of ePHI.  The conduit exception applies where the *only* services provided to a covered entity or business associate customer are for transmission of ePHI that do not involve any storage of the information other than on a temporary basis incident to the transmission service.

[i] See 78 Fed. Reg. 5,566, 5,572 (January 25, 2013).  Also see https://www.hhs.gov/hipaa/for-professionals/faq/245/are-entities-business-associates/

                    
  


Content created by Office for Civil Rights (OCR) Content last reviewed February 15, 2023Back to top
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