Where FERPA and HIPAA May Intersect

Resource:

Clinical Procedure Guidelines,
Chapter 3 “Where FERPA and HIPAA May Intersect
http://www.sde.ct.gov/sde/cwp/view.asp?a=2663&q=334188

 

or direct at http://www.sde.ct.gov/sde/cwp/view.asp?a=2663&q=334200#whereferpaandhipaamayintersect

Where FERPA and HIPAA May Intersect

When determining whether personally identifiable information from student health records maintained by the educational agency or institution may be disclosed, school officials at institutions subject to FERPA should refer to FERPA and its requirements.

When a school provides health care to students in the normal course of business, such as through its health clinic, it is also a “health care provider” as defined by HIPAA. If a school also conducts any covered transactions electronically in connection with that health care, it is then a covered entity under HIPAA. As a covered entity, the school must comply with the HIPAA Administrative Simplification Rules for Transactions and Code Sets and Identifiers with respect to its transactions. However, many schools, even those that are HIPAA covered entities, are not required to comply with the HIPAA Privacy Rule because the only health records maintained by the school are “education records” or “treatment records” of eligible students under FERPA, both of which are excluded from coverage under the HIPAA Privacy Rule. See the exception at paragraph (2)(i) and (2)(ii) to what is considered “protected health information” (PHI) at 45 CFR § 160.103) (HIPAA, 2008).
In addition, the exception for records covered by FERPA applies both to the HIPAA Privacy Rule, as well as to the HIPAA Security Rule, because the Security Rule applies to a subset of information covered by the Privacy Rule (i.e., electronic PHI). Information on the HIPAA Privacy Rule is available from the Department of Health and Human Services, as can information on the other HIPAA Administrative Simplification Rules(HIPAA, 2008).
The HIPAA Privacy Rule specifically excludes from its coverage those records that FERPA protects. When determining whether personally identifiable information from student health records maintained by the educational agency or institution may be disclosed, school officials at institutions subject to FERPA should refer to FERPA and its requirements. While the educational agency or institution has the responsibility to make the initial, case-by-case determination of whether a disclosure meets the requirements of FERPA, the U.S. Department of Education’s Family Policy Compliance Office is available to offer technical assistance to school officials in making such determinations (HIPAA, 2008).
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