Van De Kamp, 060184 CAAGO, AGO 83-812

• Case Date: June 01, 1984
• Court: California

JOHN K. VAN DE KAMP Attorney General ANTHONY S. DA VIGO Deputy Attorney General AGO 83-812 No. 83-812 California Attorney General Opinion Office of the Attorney General State of California June 1, 1984          CHAUNCEY L. VEATCH III, DIRECTOR, DEPARTMENT OF ALCOHOL AND DRUG ABUSE PROGRAMS, has requested an opinion on the following question:          Are providers of services under federally funded state alcohol or drug abuse programs prohibited by federal laws and regulations from reporting child abuse information pursuant to the California Child Abuse Reporting Law?          CONCLUSION          Providers of services under federally funded state alcohol or drug abuse programs are prohibited by federal laws and regulations, except upon the conditions and specifications therein expressly provided, from reporting child abuse information pursuant to the California Child Abuse Reporting Law.          ANALYSIS          Generally, under the Child Abuse Reporting Law (Pen. Code, §§ 11165-11174) certain persons are required to make a report to a child protective agency if, in their professional capacities or within the scope of their employments, they have knowledge of or observe a child whom they know or reasonably suspect is a victim of child abuse. (Pen. Code, § 11166(a).) These persons belong to defined categories identified as child care custodians, medical practitioners, nonmedical practitioners, child protective agency employees and commercial film and photographic print processors. (Pen. Code, §§ 11165(h), 11165(i), 11165(j) and 11165(k); see also 65 Ops.Cal.Atty.Gen. 345 (1982).) Specifically, Penal Code section 11166 provides in part:

"(a) Except as provided in subdivision (b), any child care custodian, medical practitioner, nonmedical practitioner, or employee of a child protective agency who has knowledge of or observes a child in his or her professional capacity or within the scope of his or her employment whom he or she knows or reasonably suspects has been the victim of child abuse shall report the known or suspected instance of child abuse to a child protective agency immediately or as soon as practically possible by telephone and shall prepare and send a written report thereof within 36 hours of receiving the information concerning the incident. For the purposes of this article, 'reasonable suspicion' means that it is objectively reasonable for a person to entertain such a suspicion, based upon facts that could cause a reasonable person in a like position, drawing when appropriate on his or her training and experience, to suspect child abuse. "(b) Any child care custodian, medical practitioner, nonmedical practitioner, or employee of a child protective agency who has knowledge of or who reasonably suspects that mental suffering has been inflicted on a child or his or her emotional well-being is endangered in any other way, may report such known or suspected instance of child abuse to a child protective agency."

         Penal Code section 11167 provides in part:

"(a) A telephone report of a known or suspected instance of child abuse shall include the name of the person making the report, the name of the child, the present location of the child, the nature and extent of the injury, and any other information, including information that led such person to suspect child abuse, requested by the child protective agency. "(b) Information relevant to the incident of child abuse may also be given to an investigator from a child protective agency who is investigating the known or suspected case of child abuse. "(c) The identity of all persons who report under this article shall be confidential and disclosed only between child protective agencies, or to counsel representing a child protective agency, or to the district attorney in a criminal prosecution or in an action initiated under Section 602 of the Welfare and Institutions Code arising from alleged child abuse, or to counsel appointed pursuant to Section 318 of the Welfare and Institutions Code, or to the county counsel or district attorney in an action initiated under Section 232 of the Civil Code or Section 300 of the Welfare and Institutions Code, or when those persons waive confidentiality, or by court order." (Emphases added.)

         The State Department of Alcohol and Drug Programs has been established to apply for and administer federal funds for alcohol and drug programs in California. (Health and Saf. Code, § 11750 et seq.) Federal statutory provisions pertaining to the confidentiality of information acquired in the course of a state alcohol abuse program supported by federal formula or project grants are contained in title 42 United States Code section 290 dd-3 (formerly tit. 42 U.S.C. § 4582)1:

"(a) Records of the identity, diagnosis, prognosis, or treatment of any patient which are maintained in connection with the performance of any program or activity relating to alcoholism or alcohol abuse education, training, treatment, rehabilitation, or research, which is conducted, regulated, or directly or indirectly assisted by any department or agency of the United States shall, except as provided in subsection (e) of this section, be confidential and be disclosed only for the purposes and under the circumstances expressly authorized under subsection (b) of this section. "(b)(1) The content of any record referred to in subsection (a) of this section may be disclosed in accordance with the prior written consent of the patient with respect to whom such record is maintained, but only to such extent, under such circumstances, and for such purposes as may be allowed under regulations prescribed pursuant to subsection (g) of this section. "(2) Whether or not the patient, with respect to whom any given record referred to in subsection (a) of this section is maintained, gives his written consent, the content of such record may be disclosed as follows: "(A) To medical personnel to the extent necessary to meet a bona fide medical emergency. "(B) To qualified personnel for the purpose of conducting scientific research, management audits, financial audits, or program evaluation, but such personnel may not identify, directly or indirectly, any individual patient in any report of such research, audit, or evaluation, or otherwise disclose patient identities in any manner. "(C) If authorized by an appropriate order of a court of competent jurisdiction granted after application showing good cause therefor. In assessing good cause the

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