*1 1429 108(c)’s congressional purpose required tolling effect its of section Our view result. See id. (tolling enunciated with that 566-67 ensures wholly consistent is example, states. For advantage” in other debtor cannot take “unfair by courts that involving Ida factually similar situation filing bankruptcy petition simply by (which, like the lien statute run). ho’s mechanic’s period allowing the limitations Cf. statute, employs the term “du Washington Co., Inc., Phillips In re Construction 579 bankruptcy held that ration”), 431, (7th Cir.1978) (similar po- 432-33 108(c) toll Idaho’s re applied to section noting but sition taken Seventh Circuit the lien be enforcement of quirement that of In re Warren “arguably dis- that facts In re De six months. within commenced tinguishable”). Builders, Inc., 392, 394-95 18 B.R. sign also Garbe 1981). See (Bankr.D.Idaho Attorney Fees C. Priester, Works, Ill.2d Inc. v. 99 Iron requested attorney fees based Hand has 428, 431, 425 N.E.2d 457 75 Ill.Dec. 60.04.130) (RCW Washington statute on a 108(c) Illinois mechan (1983) (section tolls allowing prevailing party reasonable though period even enforcement ic’s lien attorney appeal fees on from a lien fore- ordinary statute of “not an involved statute action. The trial court can deter- closure right since it conditions limitations attorney fees are warranted mine whether just the lien and not a mechanic’s enforce Struc- See this statute on remand. Houts, re B.R. In remedy”); Northwest, Ltd. v. & Park tural Fifth 108(c) (section applies (Bankr.W.D.Mo.1982) Place, (Wash.App.1983). 658 P.2d 546(b) does not because and section “[t]he so, properly be distinguish, and courts lien and the perfecting the the act of
tween CONCLUSION it.”); In re attempting to enforce act 108(c) hold that U.S.C. tolled We Inc., Co., B.R. England Carpet New period 60.04.100. We of RCW enforcement (section 546(b) (Bankr.D.Vt.1983) 934, 939 for further therefore reverse and remand only; lien enforce perfection of applies to opinion. proceedings consistent with re 362); In Victo stayed by section ment is and REMANDED. REVERSED Minneapolis, B.R. ria Grain Co. of (“... me filing of (Bankr.D.Minn.1984) perfection
chanic’s lien statement in 11 U.S.C. term is used
lien as However, 546(b). clearly, the commence some proceedings is
ment of foreclosure of a lien
thing perfection other than [and 362(a) ]”). stayed by section
therefore corresponds approach here Finally, our America, UNITED STATES recently announced the Second Plaintiff-Appellee, addressing question “the Circuit 108(c) periods expiration tolls the
section statutory liens.” In governing the life of EIDE, Defendant-Appellant. Stephen J. Morton, 866 F.2d (2d re No. 88-3131. case, held In that Second Circuit 108(c) operated to toll New York’s section Appeals, States Court of governing judgment liens ten-year period Ninth Circuit. Id. doing, property. In so on real 13, 1989. Jan. Argued and Submitted ap- expressly rejected the Circuit Second bankruptcy opinion court’s proach May Decided In Morton we, Id. As do re this case. statutory lan- its conclusion on
court based addition, Id. the Second Circuit
guage. persuasively that adherence
demonstrated *2 hospi-
and some statements he made at the tal. Background
I. Factual *3 A. Eide’s Initial Contact With Police To Emergency And Visit Room defendant, Eide, Stephen The was em- pharmacist ployed as a at the Veterans (VAMC) Administration Medical Center 18, 1987, Boise. On October two Boise officers, report police investigating a that a needle, injecting man was himself with a needles, syring- in his car found Eide es, drugs possession. in his After Eide injected informed the officers that he had drugs, they himself with radioed for an ambulance. police supervisor called Eide’s at the
VAMC, Poreba, Jan who soon arrived on police gave the scene. The Mr. Poreba the having option of Eide arrested or internally. the VAMC handle the matter option the latter and took Poreba chose Emergency Room where Eide Skinner, Jr., Rupert David Gardner W. Smith, examined Dr. Scott he was Skinner, Cantrill, Skinner, King, Sullivan & duty, Spidell, and Lee the resi- physician on Boise, Idaho, defendant-appellant. for Poreba, According to dent nurse. Howen, Rodriguez, P. Ronald D. Joanne rambling speech was slurred and he was Boise, Idaho, plain- Attys., Asst. U.S. and incoherent. tiff-appellee. VAMC, to a uri- At the Eide consented presence nalysis which later revealed methadone, morphine, and Darvon. Eide #3, Halcion, using Tylenol admitted to Tenuate, Darvon, and methadone. WRIGHT, TANG and Before WIGGINS, Judges. Circuit Confidentiality
B. Promises To Eide Of TANG, Judge: Circuit Eide that Although Poreba informed confidential,” kept “this would be Stephen appeals Eide his convictions confiden- promise that this grounds later testified drug-related crimes on various tiality only related to Eide’s treatment erroneously denied the district court Further- generally. situation Suppress. appeal, Eide not to the Motion to On more, report was com- emergency room hospital no argues that statements he made for this is some- pleted, though the reason being treated at a VA personnel while dispute. government claims what in suppressed should be be- emergency room Eide, as a report that no was made because given his “Miranda he was not cause non-veteran, for care at the eligible the statements rights” and because VAMC, this was argu- while Eide claims similar involuntary. Eide makes confiden- part “to ensure maximum he made done respect to statements ments with addition, urinalysis was Finally, tiality”. days later. the FBI eleven keep name Doe” to requires ordered in the “John 290ee-3 argues that 42 U.S.C. § the test confidential. urinalysis results suppression of his security help only to out there Poreba mentioned after point At some this testi- staff; corroborated began Eide’s wife confidentiality, issue of however, drugs, per- agents, The FBI denied mony. his involvement recount Dr. “history” taken part of haps as this account. Dr. process. the treatment during
Smith agreed that atmo- All the witnesses although Eide was dis- Smith testified meeting, approx- which lasted sphere of the confused, obviously oriented, mildly minutes, imately 90 was amicable. he was drugs, influence under the warnings. After given Miranda was, and he incoherent, knew where they had the agents told Eide that questions. respond to could understand tamper- results, Eide admitted to morning, October following may have drugs. The ing with admission *4 Sola, Chief 1987, with Jim Eide met agents telling by of one been induced Service, in- but was Works VAMC Social Eide aware “parable” to make Eide a short at the not be treated he could formed may pain patients of additional veteran, not a but he was VAMC because receiving of dilut- as a result have suffered the matter again that once assured was Eide dosages pain-killing of narcotics. ed discreetly possible. as as handled would be admitting to theft and signed a statement impression that Eide was drugs, later testified that tampering but of administra- being handled the matter was FBI he was meeting with the during the be would tively that no criminal action and The emotional distress. under extreme against him. taken un- though, that Eide agents, FBI testified coherent, questions, and derstood their was The FBI C. Involvement Of difficulty. physical in no appeared be 1987, bi-weekly 26, a random October On 30, morning, on October following The pharmacy revealed at audit 1987, and made agents the FBI Eide called subsequent audit a irregularities and some morphine regarding and further admissions tampered with had someone revealed that hospital returning from a After cocaine. methadone, David morphine, and cocaine. treated after being his was where wife Security, of Chief Nauge, VAMC miscarriage, again met suffering a Eide FBI called the problem and notified agents at his residence. FBI with the and Ka- agents Grajewski assigned which read Eide his Miranda Agent Grajewski agents were The case. FBI minski to the sign a form indi- Eide to rights and asked awas sus- staff that Eide by VAMC told rights. Instead of cating of these waiver results of Eide’s given the were pect and sup- form, that “I Eide signing this stated 20th mem- copy of October urinalysis, lawyer.” There was no get pose I should Poreba,1 copies and by orandum written interrogation. further Spi- and Lee by Dr. Smith letters written dell. Background II. Procedural 1987, agents 29, FBI On October 20,1987, jury filed grand November On testimony as The Eide’s residence. went to charging Eide indictment2 superseding meeting sharply is at this was said to what (1) tam- drug counts follows: with five that one testified dispute. cocaine, of 18 U.S. in violation pering with merely a this was him that agents told (2) obtaining possession 1365(a)(4);3 they C. matter and that internal memorandum, 2. filed on No- original was also indictment VA 1.This internal superceding in- 24. CR vember 1987. by Pore- suppressed, written sought to have apparently in order to add issued dictment was "Chief, In this four- Personnel Service." ba to charges: Four and Five. Counts two additional memorandum, his details page typed Poreba Eide and the impressions encounter with “Whoever, disregard for the risk reckless 3. with impressions of Eide’s police, discusses Boise danger placed person will that another condition, outlines and physical emotional bodily injury circumstances and under death illegal regarding admissions risk, Eide’s various to such manifesting extreme indifference usage. product that affects tampers consumer Thus, ap- standard erroneous deception subter- by fraud of Halcion 843(a)(3);4 Wauneka, 770 F.2d plies. 21 U.S.C. States v. in violation of fuge, fraud, violation (3) obtaining Darvon 843(a)(3); (4) tampering with 21 U.S.C. room, While of 18 hydrochloride, violation
methadone
admissions to
Eide made certain
(5)
1365(a)(4);
tampering
U.S.C. §
in Eide’s
which are discussed
October
18 U.S.C.
morphine,
violation
argues
ER 20. Eide
memorandum.
1365(a)(4).
testimony
Poreba’s
and the October
filed a Motion
January
On
suppressed
should be
be-
memorandum
Evidence,
sought
in which he
Suppress
to Poreba were
cause Eide’s admissions
(1)
suppressed:
following
have
obtained in
of Miranda v. Ari-
violation
concerning
ad-
testimony of Poreba
zona,
U.S.
missions; (2)
1987 memo-
the October
L.Ed.2d 694
Poreba; (3)
results
written
randum
ap-
issue whether Miranda even
(4)
testimony of the
urinalysis;
plies
instant situation. Under
Mi-
concerning Eide’s admissions
agents
FBI
randa,
rights”
giv-
must be
30;
(5)
“Miranda
29 and October
on October
suspect
subjected to
en when a
“custodi-
by Eide on
signed
October
statement
*5
“ques-
suppress
interrogation”
to
which is defined as
hearing, the motion
al
After a
12,
February
by
1988.
offi-
tioning
on
initiated
law enforcement
was denied
person has
taken into
cers after a
been
31, 1988,
plea
of a
as a result
On March
custody
deprived
or
of his free-
otherwise
guilty to
Two
bargain,
pleaded
Eide
Counts
significant way.”
any
dom of
in
384
action
indictment, reserving his
of the
Five
444,
at
nothing to do Eide after he with statements to be admissible. Poreba, acting with was VAMC of the agent actual or ostensible as an Suppression V. Is Eide’s Admissions Of court police. The decision district Records At The VAMC And Medical evidence is refusing suppress Poreba’s to 290ee-3 Or Required By U.S.C. § 42 clearly thus not erroneous. By Regulations? question a statute is a Interpretation At The of IV. Eide’s Admissions Should subject to de novo The of law that is review. Suppressed On Be VAMC Fund v. Amalgamated Trustees Ins. They Involun- That Were Grounds of (9th Indus., 784 F.2d Geltman 929 tary? Cir.), denied, 479 U.S. cert. that a A district court’s determination (1986). other 93 42 On the L.Ed.2d de voluntary is reviewed confession hand, findings fact court’s of district Wolf, F.2d 813 novo. United States accepted unless erroneous. must be a district general, 974 Serv., Postal 756 v. United States Johnson relevancy the of regarding decision court’s (9th Cir.1985). 1461, 1464 an abuse discre- is reviewed for evidence Burreson, that statements argues 643 F.2d tion. United States uri- denied, and results of his (9th Cir.), made at the VAMC 454 U.S. 1349 cert suppressed on the nalysis be author- 106 should 102 70 L.Ed.2d S.Ct. 290ee-3(a)6: ity probative balancing A value U.S.C. § court’s components 290ee-3(a) those Forces or within do the Armed prohibitions U.S.C. § of 42 furnishing Administration interchange apply any within Veteran’s "to of records to an individual’s any reference prog- means diagnosis, identity, Records drug abuse or to condition alcohol or which any patient nosis, treatment or caused is identified connection maintained purpose for the is made that abuse which preven- any drug abuse performance or referral treatment. of treatment conducted, regulated, or tion function any ¶ de- 2.11, (1988) indirectly (emphasis assisted add- directly or 42 C.F.R. § ed). the United States agency of “Treatment” partment be disclosed confidential ... be management shall and care of a means cir- under the purposes only for suffering from alcohol patient expressly authorized abuse, cumstances is identified as a condition which section, (b) (emphasis of this abuse, subsection by that caused having been added). both, to reduce or eliminate in order patient. order, effects adverse no by court as authorized Except 290ee-3(a) “may be to ¶ 2.11, (1988). Finally, record referred 42 C.F.R. § any criminal initiate substantiate used to “drug abuse” as regulations define or to conduct charges against psychoactive substance of a the use patient.” U.S.C. of a investigation purposes which im- than medicinal other 290ee-3(c). mental, emotional, physical, pairs the well-being of the user. ruled U.S.C. social district suppression be- compel does not 290ee-3 C.F.R. § to become (1) qualify “Eide did not cause police that he informed After Eide not a veter- he was patient because drugs, Eide was himself injected had Eide received (2) an”; “[a]ny [at treatment emergency room. taken preven- not for the VAMC] what immedi- no doubt that There can determine whether was instead tion but Eide to be taken prompted ately medical care immediate he needed “drug abuse.” emergency room was his (3) suicidal”; he was VAMC, Eide being taken VAMC, as well as psychoac- suspected of “the use an adminis- given within urinalysis, were pur- than medicinal for other tive substance hospi- medical, context of trative, anot mental, physical, impairs poses which tal. well-being the user.” emotional, or social *7 suicidal, drug abuse was his If Eide were “Patient" Meaning A. of contributing factor. a no doubt is question first threshold whether The VAMC, Thus, arriving at the it meaning of within the “patient” a was applied for” “had that Eide apparent is regula- pertinent The 290ee-3. 42 U.S.C. § drug abuse. or treatment for diagnosis “patient” as define tions “appli a formal not make if Eide did Even or applied has “any individual who for treatment, Eide diagnosis or for cation” for or treatement diagnosis given been diagnosis. Consider certainly “given” was ...” drug or abuse alcohol reg in the “diagnosis” of ing the definition add- 2.11,116(1988). (emphasis 42 C.F.R. certainly § at ulations, the staff ed). to Eide’s “any reference” made or referral. of purpose treatment for the then, issue, is whether The referral Indeed, given a Eide was or “treatment” “diagnosis” given Service.7 Work Social Chief of “Diagnosis” “drug abuse.” 290ee-3(a) and the 290ee-3(e)(l). 42 U.S.C. § covered accompanying §42 care to veterans.” health veterans, confidentiality of records is For regula- 4132 and governed § 38 U.S.C. qualifies addition, although individual In Vet- of promulgated the Administrator tions "diag- by being given either "patient” being a as (1988). 2.12(c)(1) § Affairs. 42 C.F.R. eran’s Eide, "treatment," patient "a suffer- as nosis” or veteran, a he should Eide is But since abuse,” "management given drug ing 143 (a) provides An al- and con- identified unit which the district court
We reverse treatment, “patient” drug diagnosis, Eide was a within cohol or clude that meaning 290ee-3. U.S.C. referral for treatment (b) personnel or other staff Medical Meaning B. “Records” provision is primary whose function question threshold is whether The second drug diagnosis, treat- of alcohol or abuse and results ment, and who or referral for treatment the VAMC that Eide’s seeks Eide made at providers. are identified as such “records” suppressed constitute within ¶ 2.11, (1988) (emphasis add- C.F.R. § 290ee-3(a). meaning U.S.C. § ed). means “Records” at emergency room the VAMC information, whether recorded “person”8 part” which “in undoubtedly is a not, or ac- relating to a received providing, provides, as “holds itself out and quired federally assisted alcohol by a treatment, or drug diagnosis, ... abuse drug program. fact, Eide re referral for treatment.” ¶ C.F.R. § hospital there. A ceived such services definition, Considering broad room, obviously per while urinal that the statements and we conclude abuse, forming drug functions unrelated within the mean ysis results are “records” drug serves as a vital first link abuse 290ee-3(a). ing of 42 U.S.C. § treatment, diagnosis, and referral. drug apparent many are it abusers “Federally Drug Meaning C. Assisted diagnosed drug first as abuse Program” Abuse problem, given are treatment or and first regulations, the confi- According to the abuse, hospital drug referral for their dentiality requirements of 42 U.S.C. conjunction a sus emergency room 290ee-3(a) apply to records “which drug pected overdose.9 perform- maintained in connection with the any federally assisted alcohol ance D.Conclusions 2.3(a) drug program.” abuse issue, then, statutory legislative history of this is a treatment VAMC where received Congress scheme indicates that intended drug abuse “federally assisted alcohol tragic problem” in deal with “this national meaning stat- program” within the drug facilitating work alcohol guidance Again, turn ute. we by assuring confiden- treatment centers regulations: tiality patients. & its 1972 U.S.Code
Program in whole 2072. The rationale be- person means Admin.News 290ee-3(a) encourage part hind 42 is to providing, or in holds out U.S.C. itself diag- drug problems provides, people with alcohol alcohol or *8 nosis, treatment, treat- Eide became a referral seek treatment. any general facility drug problems because of his
ment. For a care care these program, it must received medical part thereof to be a problems. have: did commit a on adverse 9. Because Eide not crime and care” in order to eliminate the effects room, though exception staff premises him. Even considering may been non-medical confidentiality have also protections for “crimes factors, “[t]he district court's statement that program premises" inapplicable. is administrative, urinalysis an not a medical was Furthermore, (1988). 2.12(c)(5)(i) impli- Memorandum, (em- requirement,” ER 22 at 15 notwithstanding, cations the dissent the state- added), phasis is erroneous. emergency room Eide made at the ments that "directly his are and the results of not 2.11,
8. As the is in 42 C.F.R. § ¶9 term used was con- related” to the crimes of which Eide individual, (1988), an "person” can mean victed. any entity. agency, government other (1988). C.F.R. § ¶8 arrest.” with formal degree associated Allowing admissions 1121, 1125, Beheler, 463 U.S. v. in a criminal to be admitted records medical California 3517, 3520, 77 L.Ed.2d meaning the literal contradicts prosecution Con as well as the 290ee-3 42 U.S.C. statute. underlying the intent gressional custody in and in fact discourage people contrary ruling would A crimes. This arrested for these was never help for their seeking professional reasonable turns on whether issue thus frus and would drug problems alcohol would people in Eide’s situation innocent drug treat of alcohol the work trate free to they would not be that conclude court erred The district facilities. ment Particularly questioning. brief leave after evidence. suppress this refusing to Eide at agents FBI interviewed because meeting home, and also because his To Eide’s Admissions VI. Should amicable, district court’s conclu Suppressed On Been FBI Have not re warnings were that Miranda sion They Obtained That Were Grounds affirmed.10 quired are Miranda v. Arizona? In Violation Of agents FBI who To The that Eide’s Admissions Eide contends VII. Should re- Suppressed his residence On The him at FBI Have Been interviewed warnings. They Miranda Involun- give him That Were quired Grounds may have been fact that Eide tary? But the investigation FBI’s does “focus” the statements argues that Finally, warnings giving of Miranda
mandate involuntary be- the FBI were he made to custody. Beckwith suspect unless agent promises the FBI implied cause of 345-46, States, 425 U.S. United argues that Specifically, made. 1615-16, 48 L.Ed.2d S.Ct. voluntary confession was that his state- him to believe agents led afforded protections procedural [t]he against him in a used not be ments would to se- designed are v. Arizona Miranda “para- and because prosecution criminal against self- privilege cure an accused’s induced the agents told him that the ble” only triggered incrimination and confession. A interrogation. the event of custodial parable, First, respect to the when, custody based defendant the use while court ruled that the district facts, pertinent all the upon a review of sympa clearly touched “parable” such person in reasonable innocent “a Eide, psychologi it did thetic chords after that conclude would circumstances This his will. him or overbear cally coerce not be he or she would questioning brief is sound. reasoning to leave.” free question of Second, regarding Wauneka, 770 F.2d FBI because omitted). confessed Cir.1985) (citations whether Eide agents, the dis promises by the implied Furthermore, circumstanc- “[although the of fact a matter found as trict court certainly influence of each case must es they agents did not mention the FBI is ‘in suspect of whether determination in a VA internal assisting merely Mi- were receiving purposes custody’ for not make they did matter and inquiry is the ultimate protection, randa implied promises misrepresentations ‘formal arrest there is a simply whether *9 of le- or even prosecution immunity from the movement’ of freedom of on restraint sufficiently free given FBI to the to the confession argues that his admissions further 10. the suppression under suppressed to avoid taint 1987 should on October FBI doctrine, particu- poisonous made at the tree" he of the statements "fruit of the as fruit days. 18 since the October See passage But eleven 1987. larly on October argu- illegally, States, this were not obtained S.Ct. statements U.S. 83 371 Wong United v. Sun 18 if the October Even has no merit. ment 441 9 L.Ed.2d inadmissible, the to be were found statements 1438 the I believe opinion because part con- Particularly there was since
niency. findings not factual court’s defer district points, we testimony on these flicting mis- majority has and the findings of fact. erroneous court’s district to the regulations. the applied voluntary, a confession to be In order intellect rational of a product must be by physical Patient I. will, not coerced free and a pressure. psychological or intimidation suppress his to ability that Eide’s agree I F.2d Tingle, 658 urinalysis turns and his statements district Cir.1981). Accepting the (9th 290ee-3(a) the associat 42 U.S.C. on Eide’s hold that findings, we factual court’s must agree also that we I ed voluntary, and FBI were to the inter regulations to applicable to the look sup- refusal court’s the district therefore United States See the statute. pret error. press Cir.1988), Corona, n. 5 — U.S. -, denied, rt. ce Conclusion VIII. with part I L.Ed.2d district rulings affirm We application of colleagues their my except as to save respects in all court I do facts. believe regulations obtained suppress evidence its refusal “patient.” qualifies as As to 290ee-3. 42 U.S.C. violation “patient” means: regulations, Under proceedings for further that, remand we applied or who has any individual for opinion. this not inconsistent or treatment diagnosis given been PART, IN REVERSED AFFIRMED abuse.... drug or alcohol IN PART AND REMANDED ¶ 2.11, (1988) (emphasis add- 42 C.F.R. § considering requires ed). definition This WRIGHT, Circuit A. EUGENE “treat- “diagnosis” definitions dissenting: Judge, “Diagnosis” means: ment.” majority opinion, V of In Part alcohol to an individual’s any reference should court the district that concludes which or to a condition drug abuse or admissions suppressed have by that caused having been as identified 290ee-3. 42 U.S.C. § records under medical purpose is made which at the “patient” he was a that It concludes treatment. treatment referral for Yet, district Center. Medical V.A. (1988) (emphasis add- declined the VAMC that found court determining definition, later report and room ed). Under this make not a requires he was occurred diagnosis Eide because has to treat refused whether of “treatment.” to the definition veteran. referral is: “Treatment” “ap- that Eide opinion decides care management and treat- diagnosis or for” plied abuse, alcohol suffering from only op- ment, although given he was Poreba, identified condition going to tion of both, abuse, caused been being arrested. supervisor, the ad- eliminate reduce or order Eide re- determines opinion upon patient. verse effects received although he “treatment” ceived (1988) (emphasis add- 2.11, 1114 42 C.F.R. district and the only a administrative, ed). to be purpose found medical. arriving First, court states diagnosis VAMC, “applied for” at the excep- majority dismisses an Finally, the Here, the drug abuse. for his or treatment crime committed for a the statute tion to the facts.1 misconstrues majority dissent from I premises. program However, I matter. “applied for” it does been had not that Eide Because I conclude "treatment," "diagnosis" given *10 police After the discovered Eide with II. Federally Drug Assisted Abuse Pro- possession, drugs they in his called his gram supervisor, option Poreba. Poreba had the Assuming Eide “patient,” awas I do not having Eide arrested or agree that the VAMC emergency room VAMC handle the internally. matter He qualifies as a “federally assisted drug option the latter chose and took Eide to the program.” abuse Again, the majority mis- emergency room for observation. The ma- construes the jority stretches by concluding these facts regulations, Under “program” “applied diagnosis that Eide for” or treat- means: ment. person which in or in part whole holds Second, majority states that Eide re- itself out as providing, provides, al- “diagnosis” ceived or “treatment.” To drug cohol or diagnosis, abuse treatment, “treatment,” give emergency room or referral for general treatment. For a provided management must have and care facility care or any part to be a thereof in order to reduce or eliminate the ad- program, it must have: drug verse upon abuse Eide. As effects (a) An already, police unit provides noted called which Poreba who identified There, drug diagnosis, alcohol or hospital. treatment, took Eide to the Dr. Smith referral took gave Eide and him treatment or urinalysis to test his truthfulness about his (b) personnel Medical or other staff drug use. whose primary provision is the function drug diagnosis, alcohol or abuse treat- opinion The quali- fails state this how ment, or referral for treatment and who fies as care in order eliminate the ad- providers. as such upon fact, verse effects Eide. In Dr. Smith identified knew the VAMC could not treat Eide.2 ¶ (1988) 42 C.F.R. (emphasis add- § The specifically district court found ed). majority’s The application of reg- purpose of the adminis- ulation focuses the first sentence. It trative, not medical. The majority does not ignores the second sentence qualifies point supporting evidence its conclu- provides the first and requirements for “a finding sion that this clearly erroneous.3 general facility care any part thereof.”
Regarding “diagnosis,” emergency room majority quali- opinion part fies general concludes as a facility that staff at the VAMC care made “reference” drug requirements must meet the regula- abuse purpose Nothing “for the tion. treatment or referral.” in the record indicates that majority states that Eide was referred it has an identified unit or identified staff to the Chief of the primarily provide drug VAMC Social Work who diagno- abuse sis, treatment, Service. This was a referral for treat- or referral for treatment. ment. Spidell, Because res- Alternatively, emergency might room nurse, ident did not to do know what about ¶ qualify under 42 C.F.R. 2.11 if9 Eide, Sola, they called the Chief of the VAMC is a “federally drug assisted abuse Service, VAMC Social Work for advice. program.” Although question I this based morning The next Sola told Eide VAMC on the terms regulation, an excep- could not treat him. tion to 290ee-3 would apply then 2.12(c)(5)
I would conclude that not a Eide was because Eide commit- “patient” meaning premises within the of 290ee-3. ted a crime on tampering disagree strongly majority’s with the character- 3. The district court found that the treatment, ization of the give drug events. did not but deter- mined if Eide majority suicidal. states 2. The district court that Dr. Smith did not found suicidal, Eide was "[i]f abuse was report make an because Eide room contributing Nothing ... factor.” in the majority was not a veteran. The states that this supports record this. dispute was in but not indicate that the does finding erroneous. *11 on his emergency room the did find methadone, morphine, not pharmacy’s the with 42 C.F. there. took him Program own. on III. Crime cocaine. See Cf. and (“[These regulations] 2.3(b)(2) (1988) R. Premises, infra. an alcohol insure that to are intended it “program” makes of The definition federally assisted in a drug patient abuse only to- directed that the statute clear is not made drug program abuse alcohol resources with programs bona ward fide the availabili by reason of more vulnerable drug abuse. fighting to dedicated an record than his or her ty of “Records ... maintained of speaks statute drug prob has an who alcohol individual of performance the with connection treatment.”) seek does not and who lem function_” prevention abuse drug majority (1982). The 290ee-3(a) U.S.C. § by apply- Congress intention ignores the Premises Program on III. Crime ad hoc administra- to an ing regulation the the terms Assuming Eide falls within emergen- occurring examination tive not absolute. 290ee-3, protections are its cy room. Hornick, See, e.g., United emergency that the opinion reasons majori 1156, 1159 link hospital’s vital first provides the room provided exceptions misapplies the ty and diagnosis treatment. 2.12(c)(5) 42 C.F.R. the and intention statute’s ignoring Besides the (1988) states: the regulations, literal terms the and use on disclosure The restrictions make sense does not majority’s rationale to apply com- regulations do not these Here, staff the could situation. this to personnel program munications be- VAMC Eide to refer treatment officers which enforcement law a veteran. was not cause patient’s (i) to a directly Are related use decide must to The criteria a court premises a crime commission of sup- disclosure also to authorize whether ...; and program does the statute that port the conclusion (ii) limited to the circumstances Are weigh public must apply. A added). incident,_ (emphasis against need for the disclosure and interest and the VAMC “patient” were a If Eide patient, to the injury to the potential drug pro- abuse “federally is a assisted relationship, physician-patient A exception. this gram,” he comes within provide program to services ability of the revealing tampering me- audit See, patients. e.g., United States other thadone, prompted morphine, and cocaine 565; Corona, 849 F.2d at crimi- leading to the investigation the FBI Here, 2.65(d)(4)(1988). would disclosure at issue charges. The records nal physician-patient injury no provide commission directly related to Eide’s ability emer- relationship or to the these crimes. services to other provide room to gency relationship no such Eide had patients. opinion states this footnote drug a emergency room is not “Eide regulation apply does not program. Eide met Dr. treatment abuse premises on the did commit crime emergency he came to the when Smith Yet, preced- in text emergency room.” earlier, merely Dr. Smith As stated room. majority states the ing footnote the urinaly- him gave his statements took where as “whether issue This demonstrates that the statute sis. ‘federally assisted received treatment ” apply. should It drug program.’ abuse alcohol hospital Finally, majority opinion indicates concludes drug link in is the “vital first encourage persons room the statute seeks It referral.” diagnosis, treatment and problems to seek or alcohol regulation statement, apply fails to general this nonetheless As a treatment. general “part” of a However, merit. it determine may rationale have “program.” facility qualifies care in this context. make sense does not *12 acknowledge refuses majority emergency or the that either both. If “program,” is the
room it program, then is the room the defi- sentence the second
fails under If the VAMC is of “program.”
nition to 42 C.F.R. exception then
program, majority errs 2.12(c)(5)applies. inconsistent terms with coming to
application of the dis- judgment affirm
I would apply does The statute court.
trict
because Eide federally as- emergency room is not Even assum- program.
sisted a program is such
ing the VAMC directly relates the evidence
regulations, sat- premises, on the occurred crime statute. exception
isfying an Petitioner-Appellant, ADAMS,
Benjamin Warden, CARROLL,
Midge
Respondent-Appellee.
No. 88-5631. Appeals, Court
Ninth Circuit. April 1989.*
Submitted 30, 1989. May
Decided * 34(a). Fed.R.App.P. Rule 34-4 and Circuit panel appropriate submis- this case finds argument pursuant oral Ninth sion without