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    HIPAA Regulations: The Family Educational Rights and Privacy Act - Relationship to Other Federal Laws

    As Contained in the HHS HIPAA  Rules

     

    HHS Description
    Relationship to Other Federal Laws - The Family Educational Rights and Privacy Act

     

    FERPA, as amended, 20 U.S.C. 1232g, provides parents of students and eligible students (students who are 18 or older) with privacy protections and rights for the records of students maintained by federally funded educational agencies or institutions or persons acting for these agencies or institutions. We have excluded education records covered by FERPA, including those education records designated as education records under Parts B, C, and D of the Individuals with Disabilities Education Act Amendments of 1997, from the definition of protected health information. For example, individually identifiable health information of students under the age of 18 created by a nurse in a primary or secondary school that receives federal funds and that is subject to FERPA is an education record, but not protected health information. Therefore, the privacy regulation does not apply. We followed this course because Congress specifically addressed how information in education records should be protected in FERPA.

    We have also excluded certain records, those described at 20 U.S.C. 1232g(a)(4)(B)(iv), from the definition of protected health information because FERPA also provided a specific structure for the maintenance of these records. These are records (1) of students who are 18 years or older or are attending post-secondary educational institutions, (2) maintained by a physician, psychiatrist, psychologist, or recognized professional or paraprofessional acting or assisting in that capacity, (3) that are made, maintained, or used only in connection with the provision of treatment to the student, and (4) that are not available to anyone, except a physician or appropriate professional reviewing the record as designated by the student. Because FERPA excludes these records from its protections only to the extent they are not available to anyone other than persons providing treatment to students, any use or disclosure of the record for other purposes, including providing access to the individual student who is the subject of the information, would turn the record into an education record. As education records, they would be subject to the protections of FERPA.

    These exclusions are not applicable to all schools, however. If a school does not receive federal funds, it is not an educational agency or institution as defined by FERPA. Therefore, its records that contain individually identifiable health information are not education records. These records may be protected health information. The educational institution or agency that employs a school nurse is subject to our regulation as a health care provider if the school nurse or the school engages in a HIPAA transaction.

    While we strongly believe every individual should have the same level of privacy protection for his/her individually identifiable health information, Congress did not provide us with authority to disturb the scheme it had devised for records maintained by educational institutions and agencies under FERPA. We do not believe Congress intended to amend or preempt FERPA when it enacted HIPAA.

    With regard to the records described at 20 U.S.C. 1232g(a)(4)(b)(iv), we considered requiring health care providers engaged in HIPAA transactions to comply with the privacy regulation up to the point these records were used or disclosed for purposes other than treatment. At that point, the records would be converted from protected health information into education records. This conversion would occur any time a student sought to exercise his/her access rights. The provider, then, would need to treat the record in accordance with FERPA's requirements and be relieved from its obligations under the privacy regulation. We chose not to adopt this approach because it would be unduly burdensome to require providers to comply with two different, yet similar, sets of regulations and inconsistent with the policy in FERPA that these records be exempt from regulation to the extent the records were used only to treat the student.

     

    HHS Response to Comments Received
    Relationship to Other Federal Laws - The Family Educational Rights and Privacy Act

     

    Comment: A few commenters supported the exclusion of ``education records'' from the definition of "protected health information." However, one commenter requested that "treatment records" of students who are 18 years or older attending post-secondary education institutions be excluded from the definition of "protected health information" as well to avoid confusion.

    Response: We agree with these commenters. See "Relationship to Other Federal Laws" for a description of our exclusion of FERPA "education records" and records defined at 20 U.S.C. 1232g(a)(4)(B)(iv), commonly referred to as "treatment records," from the definition of "protected health information."

    Comment: One comment suggested that the regulation should not apply to any health information that is part of an "education record" in any educational agency or institution, regardless of its FERPA status.

    Response: We disagree. As noted in our discussion of "Relationship of Other Federal Laws," we exclude education records from the definition of protected health information because Congress expressly provided privacy protections for these records and explained how these records should be treated in FERPA.

    Comment: One commenter suggested eliminating the preamble language that describes school nurses and on-site clinics as acting as providers and subject to the privacy regulation, noting that this language is confusing and inconsistent with the statements provided in the preamble explicitly stating that HIPAA does not preempt FERPA.

    Response: We agree that this language may have been confusing. We have provided a clearer expression of when schools may be required to comply with the privacy regulation in the "Relationship to Other Federal Laws" section of the preamble.

    Comment: One commenter suggested adding a discussion of FERPA to the "Relationship to Other Federal Laws" section of the preamble.

    Response: We agree and have added FERPA to the list of federal laws discussed in "Relationship to Other Federal Laws" section of the preamble.

    Comment: One commenter stated that school clinics should not have to comply with the "ancillary" administrative requirements, such as designating a privacy official, maintaining documentation of their policies and procedures, and providing the Secretary of HHS with access.

    Response: We disagree. Because we have excluded education records and records described at 20 U.S.C. 1232g(a)(4)(B)(iv) held by educational agencies and institutions subject to FERPA from the definition of protected health information, only non-FERPA schools would be subject to the administrative requirements. Most of these school clinics will also not be covered entities because they are not engaged in HIPAA transactions and these administrative requirements will not apply to them. However, to the extent a school clinic is within the definition of a health care provider, as Congress defined the term, and the school clinic is engaged in HIPAA transactions, it will be a covered entity and must comply with the rules below.

    Comment: Several commenters expressed concern that the privacy regulation would eliminate the parents' ability to have access to information in their children's school health records. Because the proposed regulation suggests that school-based clinics keep health records separate from other educational files, these comments argued that the regulation is contrary to the spirit of FERPA, which provides parents with access rights to their children's educational files.

    Response: As noted in the "Relationship to Other Federal Laws" provision of the preamble, to the extent information in school-based clinics is not protected health information because it is an education record, the FERPA access requirements apply and this regulation does not. For more detail regarding the rule's application to unemancipated minors, see the preamble discussion about "Personal Representatives."