RSI Security

What Is the Difference Between HIPAA vs. FERPA?

In recent decades, public health agencies and public schools have worked hand in glove, sharing health information about students in order to better understand the broader picture of teens’ overall health. In addition, schools have increasingly sought to give their students more and better health services. Seeing as schools may keep or request sensitive health information from the students or parents, it’s natural to wonder what laws cover the security and privacy of these documents. 

These days, there are two major privacy laws – HIPAA and FERPA – that may or may not cover a student’s health records. Naturally, whether they do or don’t depends on your particular situation. That said, this article will attempt to wade the convoluted mire, illuminating you as to the differences between FERPA vs. HIPAA. Keep reading to discover more! 

 

What is FERPA? 

The 1974 Family Educational Rights and Privacy Act [FERPA] is a federal law that was created to protect the privacy of student educational and health records. It set out to limit access to records by public entities such as:

According to the National Association of College Employers:

FERPA prohibits the disclosure of a student’s “protected information” to a third party. This disclosure is prohibited whether it is made by hand delivery, verbally, fax, mail, or electronic transmission. Disclosure also includes the provision of access to the educational institution’s career center database of student resumes.

FERPA applies to any educational institution that receives funding from the U.S. Department of Education. That covers the vast majority of public schools and public school districts as well as most private and public postsecondary establishments, such as Law or Medical Schools. However, FERPA does not apply to private and religious schools at the elementary and secondary levels that aren’t government funded. 

Broadly speaking, FERPA accomplishes two things:

 

 

Permitted Disclosures under FERPA

You should be aware that there are some exceptions to FERPA’s rules. Such exceptions are known as permitted disclosures, which allow information to be shared without individual authorization of a parent or a student over the age of 18. According to the CDC, examples of permitted disclosure include:

 

What is HIPAA?

As it was originally envisioned, the Clinton administration saw HIPAA as their opportunity to update the American healthcare system in accordance with the digital age.  At the time, most private health records were stored physically, and the American government wanted to transition towards electronic record keeping. In response to the changing times, HIPAA sought to accomplish three tasks:

 

Assess your HIPAA / HITECH compliance

 

HIPAA was composed of five primary titles:

  1. Created guidelines to guarantee coverage for workers who had preexisting conditions or who had lost or changed jobs. 
  2. Directed DHHS to set forth a standardized practice for processing, safeguarding, and sharing electronic health care transactions and patient data
  3. Outlined general medical care standards and tax-related provisions for deductions.
  4. Detailed provisions for individuals with preexisting conditions. 
  5. Described provisions for the treatment of individuals who had lost citizenship due to income tax issues. 

Today, HIPAA applies specifically to two parties:

 

 

Amendments to HIPAA 

Over the years, the government sought ways to encourage compliance with HIPAA and ensure the privacy and security of PHI. Steps they took included adding the following:

Despite these efforts, there were still glaring issues that were not fixed until the release of the Health Information Technology for Economic and Clinical Health [HITECH] Act in 2009. This act empowered HHS’ Office for Civil Rights [OCR], giving it more authority to demand compliance and recommend penalties for breaches of HIPAA.  

Today, HIPAA provides you, the patient, with 8 specific rights:

 

Permitted Disclosures Under HIPAA

Similarly to FERPA, there are some instances in which a patient needn’t be notified as to the disclosure of their health records. Per the CDC, permitted disclosures include: 

In addition, according to the Department of Education, disclosure is allowed if:

The covered entity has a good faith belief that the disclosure: (1) is necessary to prevent or lessen a serious and imminent threat to the health or safety of the patient or others and (2) is to a person(s) reasonably able to prevent or lessen the threat. This may include, depending on the circumstances, disclosure to law enforcement, family members, the target of the threat, or others who the covered entity has a good faith belief can mitigate the threat. The disclosure also must be consistent with applicable law and standards of ethical conduct. 

 

 

FERPA vs. HIPAA: What You Need to Know

Now that you have a better grasp as to how each of these privacy laws applies individually, we can dive into the nitty-gritty of FERPA vs. HIPAA

 

Is there an Overlap between FERPA and HIPAA?

Although both acts were designed to provide better protection to individuals in regard to their private health information, they typically operate in separate spheres. That said, there are some instances where you will see some overlap between the two. Examples of this include the following:

 

 

 

 

What Private Information is Safeguarded?

Although HIPAA and FERPA cover an individual’s privacy, they do not cover the exact same subjects. 

FERPA

FERPA protects public school student’s information as follows:

 

 

 

It should be noted that schools can disclose “directory information” about students without their consent. This usually includes general information such as: 

However, schools are required to inform parents about directory information and provide them with ample opportunity to request that such information is not disclosed. 

 

HIPAA 

HIPAA safeguards a patient’s protected health information. According to the HIPAA journal, this includes any of the following information: 

You should be aware of the fact that educational records that are covered by FERPA are specifically omitted from the HIPAA definition of PHI. 

 

Penalties for Violating FERPA and HIPAA

Naturally, there are consequences to violating the rules of either of privacy act. 

FERPA 

If there are concerns that an educational institution violated FERPA, a complaint must be filed with the Family Policy Compliance Office. From there, the office will investigate the complaint. If they find the school is guilty of violations penalties can include: 

 

HIPAA 

HIPAA created a tiered penalty system that factors the covered entity’s awareness of the violations, in addition to their response upon discovery. 

 

 

 

 

 

 

 

 

 

Staying Compliant with Both HIPAA and FERPA

If you walk the narrow road between both privacy acts, there are steps you can take to ensure the privacy of any sensitive information. This includes adding security measures such as data encryption, VPN, and dual-authentication. Furthermore, it’s essential that you take the time to educate and train your staff about the importance of abiding by both HIPAA and FERPA. 

At RSI Security, we provide expert data security and guidance so that you can achieve compliance regardless of the security standards your business needs to meet. Together, we can help you navigate this quagmire and ensure that your business is doing its best to protect the private information of students, patients, and customers. 

 

 


Download Our Complete Guide to Navigating Healthcare Compliance Whitepaper

Not sure if your HIPAA or healthcare compliance efforts are up to snuff? Unsure about where to even start? Download RSI Security’s comprehensive guide to navigating the HIPAA and healthcare compliance labyrinth. Upon filling out this brief form you will receive the whitepaper via email.


Sources  

George, C. National Association of Colleges and Employers. FERPA Primer: The Basics and Beyond. (2015). https://www.naceweb.org/public-policy-and-legal/legal-issues/ferpa-primer-the-basics-and-beyond/

U.S. Department of Education. Family Educational Rights and Privacy Act (FERPA). 

https://www2.ed.gov/policy/gen/guid/fpco/ferpa/index.html#targetText=The%20Family%20Educational%20Rights%20and,the%20U.S.%20Department%20of%20Education.

CDC. HIPAA vs. FERPA infographic. https://www.cdc.gov/phlp/docs/hipaa-ferpa-infographic-508.pdf

Privacy Rights Clearinghouse. Your medical Information and your Rights. https://www.privacyrights.org/consumer-guides/your-medical-information-and-your-rights-california-medical-privacy-series

U.S. Department of Health and Human Services. Joint Guidance on the Application of the FERPA and Privacy Act. (2008). https://www2.ed.gov/policy/gen/guid/fpco/doc/ferpa-hipaa-guidance.pdf

Health and Human Services. Does FERPA or HIPAA apply to records on students at health clinics run by postsecondary institutions? https://www.hhs.gov/hipaa/for-professionals/faq/518/does-ferpa-or-hipaa-apply-to-records-on-students-at-health-clinics/index.html

HIPAA Journal. What is Protected Health Information. (2018). https://www.hipaajournal.com/what-is-protected-health-information/

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