HIPAA vs. FERPA: Similarities, Differences, and Where They Intersect

What Is HIPAA? 

The Health Insurance Portability and Accountability Act (HIPAA) is a U.S. law enacted in 1996 to secure and protect patient health information. The primary focus of HIPAA is to maintain the confidentiality, integrity, and availability of protected health information (PHI), especially electronic PHI (ePHI). It establishes standard protocols and guidelines for responsible handling of PHI by healthcare providers, insurers, and their business associates, ensuring patient data is treated with respect and privacy.

HIPAA also includes provisions to improve the efficiency and effectiveness of the healthcare system. It aims to reduce healthcare fraud and abuse, mandate industry-wide standards for healthcare information on electronic billing and other processes, and require the protection and confidential handling of protected health information. By setting these standards, HIPAA provides patients with rights to access their own health data while safeguarding against unauthorized disclosures.

What Is FERPA? 

The Family Educational Rights and Privacy Act (FERPA) is a U.S. federal law enacted in 1974 to protect the privacy of student education records. It grants students the right to access their education records, request amendments to inaccurate or misleading information, and have control over the disclosure of personally identifiable information from these records. FERPA applies to all educational institutions that receive federal funding, ensuring standardized privacy protections across diverse educational environments.

FERPA mandates that schools must have written permission from the parent or eligible student to release any information from a student’s education record. However, there are some exceptions where schools can disclose records without consent, such as to school officials with legitimate educational interests or in response to a subpoena.

How HIPAA and FERPA Intersect 

HIPAA and FERPA intersect primarily in the context of student health records at educational institutions. When student health information is maintained by a school or a university, determining which law applies depends on the specifics of the situation.

For instance, student health records maintained by a school nurse or health clinic that are used exclusively within the educational context are generally covered by FERPA. This includes records related to immunizations, routine health screenings, and any health services provided by the educational institution directly. Under FERPA, these records are considered part of the student’s education record and are protected accordingly.

However, if a healthcare provider outside the school administers treatment to a student, and those records are shared with the school, HIPAA might come into play. For example, if a student visits a local hospital or physician, the records generated are protected by HIPAA. If those records are then shared with the school for any reason, they might fall under FERPA once they become part of the school’s maintained records.

In cases where educational institutions operate their own health clinics that serve students and sometimes the public, both HIPAA and FERPA could apply. Health records kept solely for treatment purposes at such clinics would be subject to HIPAA. Conversely, if those same records are used for educational reasons or become part of the student’s educational file, FERPA would then govern them.

Tips from the expert

Steve Moore is Vice President and Chief Security Strategist at Exabeam, helping drive solutions for threat detection and advising customers on security programs and breach response. He is the host of the “The New CISO Podcast,” a Forbes Tech Council member, and Co-founder of TEN18 at Exabeam.

In my experience, here are tips that can help you better navigate the complexities of HIPAA and FERPA compliance:

Conduct cross-departmental audits: Regularly perform cross-departmental audits to identify potential overlaps between HIPAA and FERPA in your institution. This can reveal gray areas where both laws may apply and help you establish clear boundaries to prevent compliance issues.

Integrate a unified data classification framework: Develop a unified data classification system that addresses both PHI and educational records. This will streamline the process of identifying which regulations apply to specific data types, reducing the risk of misclassification.

Create a HIPAA-FERPA overlap committee: Establish a dedicated committee or working group that focuses on the overlap between HIPAA and FERPA. This team should include legal, IT, and compliance experts who regularly review and update policies to reflect changes in laws or institutional practices.

Apply encryption at a granular level: Implement encryption not just at the database level but also for individual fields within records, especially those containing both PHI and educational information. This layered approach provides extra protection against data breaches.

Establish a dual breach response strategy: Create a breach response strategy that simultaneously addresses the requirements of both HIPAA and FERPA. This ensures that all necessary notifications and corrective actions are taken, regardless of which law is implicated in a data breach.

HIPAA vs. FERPA: The Key Differences 

Scope and Coverage

HIPAA primarily governs the healthcare sector, focusing on protecting health information held by healthcare providers, insurers, and their business associates. It applies to any entity involved in the handling of protected health information (PHI) and ensures the privacy and security of this data, especially in electronic formats (ePHI).

FERPA applies to educational institutions that receive federal funding. Its scope is centered on protecting the privacy of student education records. This includes records maintained by schools, colleges, and universities, covering all educational institutions across the United States that benefit from federal programs.

Types of Information Protected

HIPAA protects PHI, which encompasses any information related to a patient’s health status, provision of healthcare, or payment for healthcare that can be linked to an individual. This includes medical histories, lab results, mental health conditions, insurance information, and other sensitive health data.

FERPA protects education records, which are records that contain information directly related to a student and are maintained by an educational institution or a party acting on its behalf. These records can include grades, transcripts, class lists, student schedules, disciplinary records, and health information maintained by a school.

Consent and Disclosure Requirements

HIPAA requires covered entities to obtain patient consent before using or disclosing PHI for purposes other than treatment, payment, or healthcare operations. There are specific scenarios where PHI can be disclosed without patient consent, such as for public health activities, law enforcement purposes, and in cases of abuse or neglect.

FERPA mandates that schools must have written permission from the parent or eligible student to release any information from a student’s education record. There are exceptions to this rule, such as disclosure to school officials with legitimate educational interests, other schools to which a student is transferring, and compliance with judicial orders or lawfully issued subpoenas.

Penalties for Non-Compliance

HIPAA violations can result in penalties, including civil and criminal fines. Civil penalties range from $100 to $1.5 million, depending on the level of negligence. Criminal penalties can include fines of up to $250,000 and imprisonment for up to ten years for offenses committed with intent to sell, transfer, or use PHI for commercial advantage, personal gain, or malicious harm.

FERPA violations can lead to the withdrawal of federal funding from the offending educational institution. The U.S. Department of Education has the authority to investigate complaints and enforce compliance, ensuring that schools adhere to FERPA requirements. While there are no direct financial penalties akin to HIPAA, the loss of federal funding can have significant consequences for educational institutions.

Key Practices to Comply with Both HIPAA and FERPA 

Establish Clear Policies and Procedures

Institutions must develop policies and procedures tailored to meet the requirements of both HIPAA and FERPA. This involves identifying which law applies to specific types of records and situations. For instance, student health records maintained by a school nurse may fall under FERPA, while health records managed by an external healthcare provider on campus could be governed by HIPAA. 

Clear guidelines should delineate responsibilities, specify data handling protocols, and outline steps for ensuring compliance. Regular training sessions should be conducted to keep staff informed about their roles in maintaining data privacy and security.

Policies should be periodically reviewed and updated to reflect changes in regulations and emerging best practices. Involving legal counsel in the development and review of these policies ensures they are compliant with current laws. Establishing a compliance team or officer can help oversee the implementation of these policies, conduct regular audits, and serve as a point of contact for any compliance-related issues.

Access Control and Authorization

Implementing access control mechanisms is essential to protect sensitive information under both HIPAA and FERPA. Institutions should adopt role-based access controls (RBAC), ensuring that only authorized personnel can access PHI and student education records. Authentication methods, such as strong passwords, two-factor authentication, and biometric verification, can enhance security. Additionally, access logs should be maintained to track who accessed records and when, helping to detect and respond to unauthorized access attempts promptly.

Institutions should regularly review and update access controls to ensure they remain effective against evolving threats. This includes conducting periodic access reviews to verify that employees have the appropriate level of access based on their current roles and responsibilities. Immediate revocation of access for departing employees is critical to prevent unauthorized access. Training programs should educate staff about the importance of protecting login credentials and recognizing phishing attempts, which are methods used to gain unauthorized access.

Secure Data Handling Practices

To safeguard data, institutions should enforce secure data handling practices for both electronic and physical records. Encryption should be employed for data at rest and in transit to prevent unauthorized access. Secure storage solutions, such as locked cabinets for physical records and encrypted databases for digital records, are crucial. Regular audits and vulnerability assessments can help identify and mitigate potential security risks. Staff should be trained on practices for data handling, including proper disposal of sensitive information through shredding or secure digital deletion methods.

Institutions should also implement data minimization principles, ensuring that only the necessary amount of data is collected and retained. Regular data purging protocols help minimize the amount of sensitive information at risk. Employing cybersecurity measures, such as intrusion detection systems and regular software updates, further protects electronic data. For physical records, strict visitor control procedures and surveillance can prevent unauthorized access. By fostering a culture of security awareness, institutions can enhance their data protection strategies.

Record Keeping and Documentation

Maintaining accurate and comprehensive records is vital for compliance with HIPAA and FERPA. Institutions should document all policies, procedures, and training activities related to data privacy and security. Records of consents, disclosures, and access logs should be meticulously kept. This documentation not only facilitates compliance audits but also provides a trail of accountability and transparency. Regular reviews and updates of documentation practices ensure they remain aligned with evolving legal requirements and institutional needs.

Detailed records should include the rationale for data access and any decisions made regarding data disclosure. Keeping thorough documentation helps in demonstrating compliance during regulatory inspections and audits. Institutions should also establish a secure and organized system for storing these records, ensuring they are easily retrievable when needed. Electronic record-keeping systems should include backup and recovery solutions to protect against data loss. By maintaining high standards of record-keeping, institutions can enhance their credibility and trustworthiness.

Incident Response and Breach Notification

Developing an incident response plan is critical to managing data breaches effectively. Institutions should establish protocols for detecting, reporting, and responding to security incidents involving PHI or student education records. Immediate actions should include isolating affected systems, assessing the scope of the breach, and mitigating further risks. Compliance with breach notification requirements under HIPAA and FERPA is essential; affected individuals and relevant authorities must be informed within specified timeframes. Post-incident analysis should focus on identifying root causes and implementing measures to prevent recurrence, enhancing overall data security posture.

The incident response plan should outline roles and responsibilities for the response team, ensuring swift and coordinated action. Regular drills and simulations can help prepare staff for actual incidents, highlighting areas for improvement. Communication strategies should be in place to manage public relations and inform stakeholders transparently. Institutions should also establish relationships with external experts, such as cybersecurity firms and legal advisors, to provide support during a breach.

HIPAA Compliance with Exabeam

Noncompliance with HIPAA can result in heavy fines from OCR and other consequences. When patch management, access controls, and monitoring are not fully implemented with the right solution stack, it leaves the organization vulnerable to ransomware and other attack vectors that can impact patient care. 

Exabeam Security Operations Platform telemetry combines logs with context, security intelligence feeds, and AI analysis to identify anomalous behaviors that indicate potential attacks. Pre-built Dashboards make HIPAA Compliance reporting easier. Whether you are using a framework like NIST or MITRE ATT&CK^Ⓡ, Exabeam offers a clear path to track your compliance and governance request needs — while all establishing what normal looks like in your environment and for every entity logged in. 

The Outcomes Navigator offers continuous visualization and insight into your detection coverage and improvements made, which provides suggestions for improvements in log parsing as well as showing which sources and detections are most effective against which parts of the ATT&CK framework and use cases are most indicative of network penetration, persistence, and lateral movement.