Recent cyberattacks in the healthcare industry underscore the need for organizations to safeguard data privacy and sensitivity via HIPAA compliance. Likewise, privacy stipulations—such as those in the EU GDPR—can help businesses protect their customers’ data privacy. Read on for a comparison of GDPR vs HIPAA to learn about the differences and similarities between both frameworks.
GDPR 101
The European Union (EU) General Data Protection Regulation (GDPR) safeguards the privacy rights of EU citizens when it comes to how their personal data is collected and processed.
The GPDR privacy safeguards cover a wide range of personal data categories, including:
- Social security numbers
- Racial or ethnic identifiers
- Political affiliations
- Biometrics
Whether you are starting out with GDPR compliance or looking to optimize your existing data privacy controls, seeking out GDPR compliance services will help you better understand GDPR.
The Goals of GDPR Compliance
Beyond protecting consumer data privacy for EU citizens, compliance with the GDPR will help you avoid hefty non-compliance penalties—which can be as high as 20 million euros or 4% of your global annual revenue. GDPR compliance also enhances your security posture and positions you as an organization committed to strengthening consumer data privacy.
Who Needs to Comply With GDPR?
Any organization that processes the personal data of EU citizens, regardless of location, must comply with the GDPR to safeguard the rights and freedoms of the data subjects. If you are unsure about your GDPR compliance posture, working with a GDPR compliance partner can help you get situated and optimize your security controls to the standards it requires.
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HIPAA 101
Like the GPDR, the Health Insurance Portability and Accountability Act of 1996 (HIPAA) safeguards data privacy and sensitivity—specifically, protected health information (PHI).
HIPAA comprises four primary Rules, namely:
- The Privacy Rule, defining acceptable uses and disclosures of PHI by covered entities.
- The Security Rule, defining safeguards for securing electronic PHI (ePHI).
- The Breach Notification Rule, listing reporting protocols for data breaches.
- The Enforcement Rule, detailing the enforcement of HIPAA compliance by the Office of Civil Rights (OCR) and, in the worst cases, the Department of Justice (DOJ).
Compliance with HIPAA will help you safeguard the privacy and sensitivity of PHI, especially when optimized via HIPAA compliance services. It also helps covered entities and business associates to whom it applies (see below) avoid costly non-compliance penalties.
The Goals of HIPAA Compliance
HIPAA compliance is critical to safeguarding PHI from security risks and maintaining the data privacy rights of patients. PHI is a common target for cybercriminals—requiring organizations within and beyond healthcare to implement HIPAA-compliant security controls to safeguard PHI against data breach risks. Compliance with HIPAA will also help you avoid the legal, financial, and reputational consequences of a data breach of PHI.
Who Needs to Comply With HIPAA?
Organizations defined as covered entities by HIPAA must comply with the HIPAA Rules to safeguard PHI. Per the HIPAA Privacy Rule, covered entities include:
- Health plans cover the cost of healthcare (e.g., medical services insurers).
- Healthcare providers provide medical services and transmit, process, or store PHI for medical service-related transactions.
- Healthcare clearinghouses convert PHI from non-standard formats into standard ones or vice versa as a service for health plans or healthcare providers.
- Business associates of covered entities conduct transactions with PHI that involve its use or disclosure.
Any organization within and adjacent to healthcare that handles PHI may be defined as a covered entity, depending on the type of transactions it performs. It is always best to consult with a HIPAA compliance advisor to ensure you are fully HIPAA-compliant, even if your organization’s relationship with the healthcare industry is seemingly tangential.
GDPR vs HIPAA: Top Differences and Similarities
Although both HIPAA and GDPR regulations safeguard the privacy of sensitive data, there are some specific differences between GDPR and HIPAA with respect to their scopes, the rights they protect, and the processes required for4 compliance. In cases where both frameworks apply, organizations need to cover all elements of both while minimizing control overlap.
When assessing GDPR vs HIPAA, here are the key similarities and differences:
Data Subjects’ Consent
GDPR and HIPAA compliance both require consent, but in different contexts.
When it comes to consent-based data processing, the GDPR requires organizations to obtain consent from data subjects before processing their data. Data subjects can also withdraw consent regarding the processing of their personal data at any time.
HIPAA, compared to GDPR, stipulates that covered entities may—but are not required to—obtain voluntary patient consent for uses and disclosures of PHI for transactions such as:
- Treatment
- Payment
- Healthcare operations
However, any uses and disclosures of PHI outside those permitted by the Privacy Rule require explicit, formalized patient authorization.
Data Subjects’ Right to Be Forgotten
GDPR data subjects have the right to request data controllers to erase their data if it meets the GDPR “right to be forgotten” requirements, but no such right exists within the HIPAA framework.
Following a request for data erasure by a GDPR data subject, a data controller must notify all other parties involved in processing these data of the request to erase the subject’s data.
However, HIPAA does not provide patients with any rights to request erasure of their PHI. Instead, subjects of the PHI have the right to request copies of their PHI or have covered entities transmit the PHI to designated parties.
The Impacts of Data Breaches
Both HIPAA and GDPR regulations require organizations to report data breaches to relevant parties and authorities, but the specifics of each framework’s protocols differ significantly.
The GPDR requires data controllers to report data breaches within 72 hours of learning about the breach to a supervisory authority, except if there is a low likelihood of the breach affecting the rights and freedoms of data subjects. When submitting a notification, data controllers must also describe, per GDPR Article 33, the circumstances surrounding the data breach.
However, HIPAA, compared to GDPR, stipulates different breach notification requirements depending on the number of individuals that were impacted:
- For 500 or more individuals, covered entities must submit a breach notification to the Secretary of the HHS within 60 days of discovering the breach.
- If fewer than 500 individuals, covered entities must submit a notification within 60 days of the calendar year in which the breach was identified.
For both the GDPR and HIPAA, data breaches have significant legal, financial, and reputational consequences. Another complication for HIPAA is that any breach of the Privacy or Security Rules may be considered a breach, unless no data privacy impact is deemed likely by the HHS.
Protected Data Classes
Maybe the biggest difference between GDPR and HIPAA is the kind of data each protects.
By definition, any personal data of EU citizens is classified as protected data under the GDPR. However, the GDPR also outlines special categories of personal data that must not be processed by data controllers, except under the circumstances in Article 9 of the GDPR.
GDPR special data categories include:
- Racial and ethnic data
- Biometric data
- Data revealing religious or philosophical beliefs
Protected data under HIPAA refers to the different types of PHI, including:
- Medical records indicating an individual’s past or present physical and mental health
- Details surrounding the present or past provision of healthcare to an individual
- Identifiers of an individual from past, present, or future payment information
Both the HIPAA and GDPR regulations outline specific guidelines to help organizations safeguard protected data during collection, processing, and transmission.
Scope of Data Protection
Finally, HIPAA and GDPR also differ in the scope of protection—how far each reaches.
Under GDPR’s material scope, any personal data of EU citizens that is processed by automated or non-automated means is subject to the GDPR. Likewise, the GDPR territorial scope defines any data processing that involves the personal data of EU citizens as subject to the GDPR, regardless of a processor’s location. EU citizens’ data is protected, always and everywhere.
Compared to the GDPR, HIPAA applies to covered entities operating in the US (see above), which must safeguard any collection, processing, storage, and transmission of PHI (see above).
How to Become GDPR Compliant
A GDPR-subject entity can become GDPR compliant with the help of a GDPR checklist, which outlines steps for preparing for, operationalizing, and maintaining GDPR compliance. One of the most important steps in achieving GDPR compliance is enlisting the services of a Data Protection Officer (DPO) to build compliance preparedness.
Whether hiring internally or outsourcing, you must ensure that a DPO meets the Data Protection Officer GDPR requirements and understands their responsibilities in helping your organization become GDPR compliant.
How to Become HIPAA Compliant
HIPAA compliance can also be streamlined via a HIPAA compliance checklist, which lists all the necessary processes and implementations to help you secure your PHI. Even after achieving a high standard of HIPAA compliance, HIPAA controls must remain optimized to ensure robust compliance that meets and surpasses HIPAA standards.
Outsourcing HIPAA compliance services will help you effectively manage HIPAA security controls based on your organization’s needs.
Achieve HIPAA and GDPR Compliance
Evaluating GDPR vs HIPAA will help you identify which compliance framework best addresses your data security needs. Whether you process HIPAA- or GDPR-subject data, or both, working with a compliance partner experienced in HIPAA and GDPR compliance optimization will help you streamline and achieve desired compliance. Contact RSI Security today to learn more!