State high court finds medical personnel exemption to biometric
information privacy law
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[December 01, 2023]
By HANNAH MEISEL
Capitol News Illinois
hmeisel@capitolnewsillinois.com
The Illinois Supreme Court on Thursday ruled the state’s
strongest-in-the-nation biometric information privacy law does have an
exemption: health care workers who use fingerprints or similar scans to
access things like medication, materials or patient health information.
In a unanimous opinion, the justices ruled against a pair of nurses who
sued their employers over their use of fingerprint-enabled medication
storage – a technology many hospitals have adopted to curb abuse or
theft of certain drugs.
The nurses alleged their hospitals’ use of these medicine cabinets
violated Illinois’ Biometric Information Privacy Act by not properly
notifying them or their colleagues when their fingerprints were
collected and stored.
But the hospitals maintained BIPA has a built-in exemption for the
collection, use and storage of biometric information needed for “health
care treatment, payment or operations” under the federal Health
Insurance Portability and Accountability Act, or HIPAA.
Writing for his colleagues, Justice David K. Overstreet sided with the
hospitals, citing the law’s “plain language” exemption to health care
workers’ biometric information being “used to permit access to
medication dispensing stations for patient care.”
![](http://archives.lincolndailynews.com/2023/Dec/01/images/ads/current/graue_sda_042021.png)
In oral arguments in front of the court in September, the nurses’
attorney Jim Zouras claimed siding with the hospitals would mean “the
General Assembly decided that as much as 10 percent of the Illinois
workforce should have no biometric privacy protection whatsoever simply
by virtue of working in the health care field.”
But the court’s opinion countered that claim.
“We are not construing the language at issue as a broad, categorical
exclusion of biometric identifiers taken from health care workers,”
Overstreet wrote. “Here, the nurses’ biometric information, as alleged
in the complaints, was collected, used, and stored to access medications
and medical supplies for patient health care treatment and is excluded
from coverage under the Act because it is ‘information collected, used,
or stored for health care treatment, payment, or operations under [HIPAA].’”
While an appellate court had sided with the nurses, the supreme court
reversed that decision, agreeing with the circuit court judge’s original
finding.
The Illinois Health and Hospital Association, which filed an amicus
brief in the case, praised the court’s ruling on Thursday.
“Today’s decision correctly interprets that the legislature intended an
exemption for biometric information when it is being used for
‘treatment,’ ‘payment’ and ‘operation’ purposes – such as fingerprint
scans to access medical cabinets to efficiently dispense lifesaving
medications, while also preventing drug diversion,” IHA spokesperson
Paris Ervin said in a statement. “We are pleased that today's decision
will allow hospitals and healthcare providers to focus on what they do
best – care for their patients and communities.”
![](http://archives.lincolndailynews.com/2023/Dec/01/images/ads/current/culligan_sda_HFH_2023.png)
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![](../images/120123PIX/news_d4.gif)
Justice David Overstreet wrote the unanimous opinion for a case in
which the Illinois Supreme Court found that the state’s Biometric
Information Privacy Act does not apply to health care workers
required to use fingerprint scanners to dispense medicine. (Capitol
News Illinois illustration by Andrew Adams)
![](http://archives.lincolndailynews.com/2023/Dec/01/images/ads/current/debbiesfloral_lda_112023.png)
Industrywide implications
Thursday’s opinion is a departure from the court’s recent rulings in
other cases related to BIPA, the law that allows individual customers
and employees to sue businesses that don’t properly disclose the
collection or storage of information like fingerprint, face, eye or
voice scans.
BIPA-related litigation has exploded in the last several years as the
widespread adoption of scanning technology has caught up to concepts
envisioned in the 2008 law. Illinois was the first state to adopt such a
law 15 years ago, and though two other states have imitated the statute,
Illinois’ is the only law that allows a private right for individuals to
sue.
Since roughly 2018, upwards of 2,000 suits have been filed under BIPA,
followed by several high-profile, high-dollar settlements – including a
$650 million class-action settlement with Facebook in 2020. The social
media giant paid more than 1 million Illinoisans over $400 each.
Earlier this year, the state’s high court issued two rulings
strengthening BIPA. In the first case, a unanimous majority found the
law unequivocally provided a five-year statute of limitations on
lawsuits against companies that collected biometric information from
employees or customers without proper notice – instead of the one-year
time limit argued by the business community.
Two weeks later, a divided court ruled that each time a person’s
biometric data is collected constitutes a separate violation of BIPA,
which under the law means $1,000 in damages for “negligent” violations
or $5,000 for “reckless” or “intentional” violations. However, the court
didn’t address how damages can accrue under BIPA, meaning it’s still
unclear whether each violation means another $1,000 or $5,000 can be
added to calculate a total for damages.
Last year, in the first jury trial test of the law, a federal jury
granted $228 million in damages in a class-action case against BNSF
Railways. But the railroad was granted a new trial this summer, wiping
out the award. BNSF ultimately settled the case in September.
![](http://archives.lincolndailynews.com/2023/Dec/01/images/ads/current/humanesociety_sda022411.png)
All those legal developments have sparked lobbying efforts from industry
groups representing business interests, which have been pushing for
amendments to BIPA for the last few years.
Negotiations to possibly reopen BIPA to address the high court’s
February rulings fell apart during the final weeks of the General
Assembly’s spring legislative session in May.
Capitol News Illinois is
a nonprofit, nonpartisan news service covering state government. It is
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It is funded primarily by the Illinois Press Foundation and the Robert
R. McCormick Foundation, along with major contributions from the
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