dissenting:
In Part V of the opinion, the majority concludes that the district court should have suppressed Eide’s admissions and medical records under 42 U.S.C. § 290ee-3. It concludes that he was a “patient” at the V.A. Medical Center. Yet, the district court found that the VAMC declined to make an emergency room report and later refused to treat Eide because he was not a veteran.
The opinion decides also that Eide “applied for” drug abuse diagnosis or treatment, although he was given only the option of going to the VAMC with Poreba, his supervisor, or being arrested.
The opinion determines that Eide received “treatment” although he received only a urinalysis and the district court found the purpose to be administrative, not medical.
Finally, the majority dismisses an exception to the statute for a crime committed on the program premises. I dissent from this part of the opinion because I believe the district court’s factual findings are not clearly erroneous and the majority has misapplied the regulations.
I. Patient
I agree that Eide’s ability to suppress his VAMC statements and his urinalysis turns on 42 U.S.C. § 290ee-3(a) and the associated regulations. I agree also that we must look to the applicable regulations to interpret the statute. See United States v. Corona, 849 F.2d 562, 565 n. 5 (11th Cir.1988), cert. denied, — U.S. -, 109 S.Ct. 1542, 103 L.Ed.2d 846 (1989). I part with my colleagues in their application of the regulations to the facts. I do not believe Eide qualifies as a “patient.”
Under the regulations, “patient” means: any individual who has applied for or been given diagnosis or treatment for alcohol or drug abuse....
42 C.F.R. § 2.11, ¶ 6 (1988) (emphasis added). This definition requires considering the definitions of “diagnosis” and “treatment.” “Diagnosis” means:
any reference to an individual’s alcohol or drug abuse or to a condition which is identified as having been caused by that abuse which is made for the purpose of treatment or referral for treatment.
42 C.F.R. § 2.11, 113 (1988) (emphasis added). Under this definition, determining whether a diagnosis has occurred requires referral to the definition of “treatment.” “Treatment” is:
the management and care of a patient suffering from alcohol or drug abuse, a condition which is identified as having been caused by that abuse, or both, in order to reduce or eliminate the adverse effects upon the patient.
42 C.F.R. § 2.11, 1114 (1988) (emphasis added).
First, the court states that upon arriving at the VAMC, Eide “applied for” diagnosis or treatment for his drug abuse. Here, the majority misconstrues the facts.1
*1439After the police discovered Eide with drugs in his possession, they called his supervisor, Poreba. Poreba had the option of having Eide arrested or having the VAMC handle the matter internally. He chose the latter option and took Eide to the emergency room for observation. The majority stretches these facts by concluding that Eide “applied for” diagnosis or treatment.
Second, the majority states that Eide received “diagnosis” or “treatment.” To give “treatment,” the emergency room must have provided management and care in order to reduce or eliminate the adverse effects of drug abuse upon Eide. As noted already, the police called Poreba who took Eide to the hospital. There, Dr. Smith took statements from Eide and gave him a urinalysis to test his truthfulness about his drug use.
The opinion fails to state how this qualifies as care in order to eliminate the adverse effects upon Eide. In fact, Dr. Smith knew the VAMC could not treat Eide.2 The district court found specifically that the purpose of the urinalysis was administrative, not medical. The majority does not point to any evidence supporting its conclusion that this finding is clearly erroneous.3
Regarding “diagnosis,” the majority opinion concludes that staff at the VAMC made “reference” to Eide’s drug abuse “for the purpose of treatment or referral.” The majority states that Eide was referred to the Chief of the VAMC Social Work Service. This was not a referral for treatment. Because Poreba and Spidell, the resident nurse, did not know what to do about Eide, they called Sola, the Chief of the VAMC Social Work Service, for advice. The next morning Sola told Eide the VAMC could not treat him.
I would conclude that Eide was not a “patient” within the meaning of § 290ee-3.
II. Federally Assisted Drug Abuse Program
Assuming Eide was a “patient,” I do not agree that the VAMC emergency room qualifies as a “federally assisted drug abuse program.” Again, the majority misconstrues the regulations.
Under the regulations, “program” means:
a person which in whole or in part holds itself out as providing, and provides, alcohol or drug abuse diagnosis, treatment, or referral for treatment. For a general care facility or any part thereof to be a program, it must have:
(a) An identified unit which provides alcohol or drug diagnosis, treatment, or referral for treatment or
(b) Medical personnel or other staff whose primary function is the provision of alcohol or drug abuse diagnosis, treatment, or referral for treatment and who are identified as such providers.
42 C.F.R. § 2.11, ¶ 9 (1988) (emphasis added). The majority’s application of this regulation focuses upon the first sentence. It ignores the second sentence which qualifies the first and provides requirements for “a general care facility or any part thereof.” The emergency room of the VAMC qualifies as a part of a general care facility and must meet the requirements of the regulation. Nothing in the record indicates that it has an identified unit or identified staff who primarily provide drug abuse diagnosis, treatment, or referral for treatment.
Alternatively, the emergency room might qualify under 42 C.F.R. § 2.11 ¶ 9 if the VAMC is a “federally assisted drug abuse program.” Although I question this based on the terms of the regulation, an exception to § 290ee-3 would then apply under 42 C.F.R. § 2.12(c)(5) because Eide committed a crime on the premises by tampering *1440with the pharmacy’s methadone, morphine, and cocaine. See III. Crime on Program Premises, infra.
The definition of “program” makes it clear that the statute is directed only toward bona fide programs with resources dedicated to fighting drug abuse. The statute speaks of “Records ... maintained in connection with the performance of any drug abuse prevention function_” 42 U.S.C. § 290ee-3(a) (1982). The majority ignores the intention of Congress by applying the regulation to an ad hoc administrative examination occurring in an emergency room.
The opinion reasons that the emergency room provides the hospital’s vital first link in drug abuse diagnosis and treatment. Besides ignoring the statute’s intention and the literal terms of the regulations, the majority’s rationale does not make sense in this situation. Here, the staff could not refer Eide to treatment at the VAMC because he was not a veteran.
The criteria a court must use to decide whether to authorize disclosure also support the conclusion that the statute does not apply. A court must weigh the public interest and need for the disclosure against the potential injury to the patient, to the physician-patient relationship, and to the ability of the program to provide services to other patients. See, e.g., United States v. Corona, 849 F.2d at 565; 42 C.F.R. § 2.65(d)(4) (1988). Here, disclosure would provide no injury to the physician-patient relationship or to the ability of the emergency room to provide services to other patients. Eide had no such relationship and the emergency room is not a drug abuse treatment program. Eide met Dr. Smith when he came to the emergency room. As stated earlier, Dr. Smith merely took his statements and gave him a urinalysis. This demonstrates that the statute should not apply.
Finally, the majority opinion indicates that the statute seeks to encourage persons with drug or alcohol problems to seek treatment. As a general statement, this rationale may have merit. However, it does not make sense in this context. Eide did not find the emergency room on his own. Poreba took him there. Cf. 42 C.F.R. § 2.3(b)(2) (1988) (“[These regulations] are intended to insure that an alcohol or drug abuse patient in a federally assisted alcohol or drug abuse program is not made more vulnerable by reason of the availability of his or her patient record than an individual who has an alcohol or drug problem and who does not seek treatment.”)
III. Crime on Program Premises
Assuming Eide falls within the terms of § 290ee-3, its protections are not absolute. See, e.g., United States v. Hornick, 815 F.2d 1156, 1159 (7th Cir.1987). The majority misapplies the exceptions provided by the regulations. 42 C.F.R. § 2.12(c)(5) (1988) states:
The restrictions on disclosure and use in these regulations do not apply to communications from program personnel to law enforcement officers which
(i) Are directly related to a patient’s commission of a crime on the premises of the program ...; and
(ii) Are limited to the circumstances of the incident,_ (emphasis added).
If Eide were a “patient” and the VAMC is a “federally assisted drug abuse program,” he comes within this exception. A VAMC audit revealing tampering with methadone, morphine, and cocaine prompted the FBI investigation leading to the criminal charges. The records at issue were directly related to Eide’s commission of these crimes.
In footnote 9, the opinion states that this regulation does not apply because “Eide did not commit a crime on the premises of the emergency room.” Yet, in text preceding the footnote the majority states the issue as “whether the VAMC where Eide received treatment is a ‘federally assisted alcohol and drug abuse program.’ ” It also concludes that the hospital emergency room is the “vital first link in drug abuse diagnosis, treatment and referral.” It nonetheless fails to apply the regulation to determine whether this “part” of a general care facility qualifies as a “program.”
*1441The majority refuses to acknowledge that either the VAMC or the emergency room is the “program,” not both. If the emergency room is the program, then it fails under the second sentence of the definition of “program.” If the VAMC is the program, then the exception to 42 C.F.R. § 2.12(c)(5) applies. The majority errs by not coming to terms with this inconsistent application of the regulations.
I would affirm the judgment of the district court. The statute does not apply because Eide was not a patient and because the emergency room is not a federally assisted drug abuse program. Even assuming the VAMC is such a program under the regulations, the evidence directly relates to a crime that occurred on the premises, satisfying an exception to the statute.
. Because I conclude that Eide had not been given "diagnosis" or "treatment," whether he “applied for” it does not matter. However, I *1439disagree strongly with the majority’s characterization of the events.
. The district court found that Dr. Smith did not make an emergency room report because Eide was not a veteran. The majority states that this was in dispute but does not indicate that the finding is clearly erroneous.
. The district court also found that the VAMC did not give drug abuse treatment, but determined if Eide was suicidal. The majority states that "[i]f Eide was suicidal, his drug abuse was ... a contributing factor.” Nothing in the record supports this.