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HIPAA Versus FERPA Compliance

Question: If FERPA applies to agencies & institutions that receive funds via the umbrella of the Secretary of Education, why is the ‘Early Intervention Program’ covered by FERPA oversight of Early Intervention administered, in the most part, by local Departments of Health?

Answer: To appreciate the answer to this question, one must understand the origin of the laws and processes involved in the formation of Individuals with Disabilities Education Act (IDEA), which gave birth to the Early Intervention Program. The history begins with the American Disabilities Act of 1973 which raised awareness to the special needs population. Further legislation was passed in 1975 to enact the Education for All Handicapped Children Act, also known as Public Law (PL) 94-142. This law required all states that accepted federal aid for special education to offer all disabled students a free and appropriate education. Based on these findings, further legislation was passed in 1975 to enact the Education for All Handicapped Children Act, also known as Public Law (PL) 94-142. This law required all states that accepted federal aid for special education to offer all disabled students a free and appropriate education. In 1986, The Education for All Handicapped Children Act was amended to include PL 99-457 which "supported the right to early intervention services of all infants, toddlers, and preschoolers with a disability to those at risk of having a substantial developmental delay1." Further amendments of PL 99-457 in 1990 brought major changes to the original Education for All Handicapped Children Act and created the Individuals with Disabilities Education Act (IDEA). Two important sections were specified in the IDEA known as Part B and Part C (formerly Part H). Part B of IDEA was developed to include public school system responsibility for providing services to eligible children aged three to 21. Part C of IDEA was established to give states the option to provide early intervention services for eligible infants and toddlers aged birth through two years of age. The key theme running through the history of laws that lead to the gestation and birth of the Early Intervention Program is “Education.”

FERPA versus HIPPA

The Health Insurance Portability and Accountability Act, known as HIPAA, was created in 1996 to help secure families with health insurance. Title II of HIPAA, the Administrative Simplification (AS) provisions address the security and privacy of health data, whether electronic or paper. Oversight of HIPPA is provided by U.S. Department of Health and Human Services (DOHHS). Because monies for the Early Intervention Program does not flow from the DOHHS, the stringent HIPPA laws pertaining to child data DO NOT apply to the Early Intervention Program, which receives its funding via the United State Department of Education.

In a nutshell, the underpinning of the early intervention program is based on IDEA, and the “E” of IDEA stands for ‘education.’ Hence, the federal monies flowing to the State Early Intervention Programs are tied to FERPA.

However, according to some State regulatory guidelines, the billing information (electronic remittance advice) which, when interfacing with a web-based billing program, must be electronically transmitted in accordance with HIPAA regulations.