Some Clarification Regarding Earthquake Standards – FIrst NPC

There are deadlines for three different levels of earthquake safety and people can easily conflate them if they are not well-versed. There are the NPC (non-structural performance category) guidelines and the SPC (structural performance category) guidelines.   To begin with, one of the best primers on these issues even if there is some things that are deliberately misleading is Kerry Easthope’s presentation to the Board for the January, 2011 meeting.  Ignore his February memo for the Board since it is error prone and incorrect in several key aspects with the exception that he is correct that the Hospital has a valid license to operate (more on this below).

The NPC-2 requirements

“After January 1, 2002, any general acute care hospital
building which continues acute care operation must, at
a minimum, meet the nonstructural requirements of
NPC 2, as defined in Article 11, Table 11.1 or shall no
longer provide acute care services.”

This could not be clearer, right? Alameda Hospital does not meet the NPC-2 requirements.  For people who believe I have a “point of view”, the fact that Alameda Hospital does not meet the NPC-2 requirements is undisputed by Hospital management, fellow Board members, and OSHPD.   Except OSHPD has not enforced this explicit code.  Despite the false argument that Hospital management has made that there is an implicit/explicit extension of this deadline, there have been no extensions granted by OSHPD.  I confirmed this with public records act request to OSHPD, a conversation with Christopher Tokas (head of the Seismic Retrofit Program Unit within OSHPD’s Facilities Development Division), and a conversation with staff counsel at OSHPD.  The only reason the Hospital has not been shut down is because OHSPD has not brought an action against the Hospital. 

It is unclear how many hospitals throughout the state are in the same boat.  A public records act to OSHPD yielded a long list which, in some cases, such as UC hospitals I knew to be incorrect in listing facilities as non-compliant that had completed the necessary work or been taken out of service.  Many fewer than people suppose is the best answer I can give, but probably still quite a few.  One problem is that OSHPD reports non-compliance in terms of buildings rather than institutions.  Here is a presentation from December, 2009 with more infomation, but I caution you that it overstated the level of non-compliance at that time and certainly is not current as of today.

Will OSHPD ever enforce this regulation?  I doubt it unless they use it as part of a larger action against an institution.  Could a private citizen force OSHPD action?  I think the answer is yes (with a writ of mandate) but it depends on the degree of discretion that OSHPD has regarding this regulation relative to the legislative intent.  If the regulation is a product of OSHPD only with direction from the legislature to create some regulation then I doubt that a lawsuit would overcome the vigorous opposition that both OSHPD and the District would mount.  If the regulation has it’s basis in legislation then the lawsuit might succeed although, just as likely, the legislature would pass a change given that closing hospitals is hardly politically correct.

Why would I not file such a lawsuit? 1.  I think it presents too large a conflict of interest for me to continue to serve on the Board and be a party to a lawsuit against the District (although technically it would be against OSHPD).  2.  It’s expensive and time-consuming.  3.  The outcome is uncertain.  4.  even if successful, legislation could be quickly passed that yielded any victory in court moot.  5.  The Hospital is doing a good enough job imploding on its own.  6.  The Board majority and management already treat me fairly shabbily and I have about reached my limit to the amount of incivility, bullying, and outright misrepresentation that I can stand from therm.  Surely a lawsuit would just intensify those efforts.

Make no mistake though, whatever you think about my “point of view” the Hospital is in non-compliance with black and white state regulations.  (More on SPC requirements at a future time.)

About egorelick

Gadfly. Former City of Alameda Healthcare District Board member.
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