Bar Journal - Spring 2007
RSA 141-C: Due Process and the Pandemic
By: Attorney Nancy J. Smith
This article examines the due process protections for mandatory quarantine and isolation that were incorporated into RSA 141-C in 2002 and how these provisions may be activated in a public health emergency. It will analyze the possible impact of a serious influenza pandemic health crisis on New Hampshire in light of historical information about the impact of the Spanish Flu Pandemic of 1918-1919 in New Hampshire, and statistics from other more recent pandemics. The usefulness of various tools available to state and local authorities in the event of a pandemic, such as voluntary isolation and quarantine, work quarantine, closure of public gatherings will be addressed. Finally, this article will serve as an encouragement to lawyers and firms to consider possible steps that may be taken to anticipate and manage the potential impact of a pandemic on their own legal practice.
In order to discuss why the legal profession should be prepared for a pandemic, it is necessary to briefly define what a pandemic is. While a complete definition of a pandemic should be left to the epidemiologists, the following definition is useful for this article: A pandemic is a disease occurring over a wide geographic area that affects an exceptionally high proportion of the population.1 Influenza is only one of 16 diseases that the World Health Organization (WHO) monitors for possible pandemic.2 Public concern in recent years has focused on the risk of avian influenza mutating to an influenza virus transferable to humans.
Influenza viruses mutate fairly easily by swapping genes, particularly when a host is infected by more than one type of virus at the same time.3 A Pandemic flu is a new virulent human flu that causes a global outbreak, or pandemic, of serious illness. Because there is little natural immunity, the disease can spread easily from person to person.4
There have been three flu pandemics in the last century: the 1918-1919 Spanish Flu; the 1957 Asian Flu and the 1968 Hong Kong Flu. The 1918 Spanish Flu outbreak is the one against which all others are measured. It affected 20 to 40 percent of the population worldwide, with an estimated 50 million deaths, of which approximately 675,000 occurred in the United States.5 Of the effects here in New Hampshire, the following are but an example:
Here in Concord, a former mayor named Charles Corning reported, “Grippe [influenza] is sweeping over Massachusetts and New Hampshire as fire shrivels the fields, laying out communities and taking a toll of death unprecedented.” He continued, “A heavy sense of anxiety and apprehension like a dismal cloud in midsummer weighs heavily upon us because of the deadly ravages of the so-called Spanish influenza. Funerals jostle one another so the sable procession goes on.”
The pandemic caused shortages of essential workers. Thirty to forty percent of the employees at the New England Telephone and Telegraph Company were sick, and so the company took out ads, imploring customers to cut out unnecessary calls and not to ask for the operator.
There were also terrible shortages of doctors and nurses. During the peak of the pandemic (around mid-October), a public health worker from the town of Berlin (located in northeast New Hampshire) reported: “It is hardly possible for me to describe the conditions in this community. I am the only experienced public health worker here with the exception of the staff. Saturday, I cared for 40 patients, from four to nine sick in one family. Everything possible is being done. There are only seven doctors in the city.”6
It is impossible to predict how severe the impact of a new pandemic is likely to be because the medical world does not know how virulent a new strain is until it mutates. While there is some comfort in the fact that a virus is unlikely to be a successful pandemic if it kills all of its hosts, the fact that the mutation cannot be predicted also means that a vaccine cannot be developed until after the actual mutation occurs. Although the technology is improving, there is still a lag time of approximately four to six months between identification of a new influenza virus and the ability to produce a vaccine. Although there are now anti-viral medications, such as Tamiflu or Relenza, that may provide some protection while they are being taken, or that may assist an infected person’s ability to overcome the virus, there is no guarantee that these medications will work against a specific mutated strain of a virus in the future.
Against this backdrop, what then are the challenges for the legal profession in facing a situation in which 30 to 40 percent of the population is either sick or has been exposed to a pandemic influenza virus? There is not a definite answer to this question, but the three following areas merit discussion. The first topic is the availability and practicality of using isolation and quarantine laws in a pandemic situation. Second, is the importance of having business plans in order to assure continuation of quality level legal service for clients, as well as individual plans for personal and family well-being. Finally, there are possible shifts in the demand for legal services that might result from a pandemic.
II. RSA 141-C: Quarantine
In November 2005 the New Hampshire Department of Safety, Bureau of Emergency Management7 and the New Hampshire Department of Health and Human Services (DHHS), Division of Public Health, jointly conducted a pandemic influenza exercise. The exercise was based on a fact scenario in which avian flu arrived in New Hampshire via a college student traveling by bus from Canada to Durham after visiting Indonesia, where the WHO had just confirmed cases of human-to-human transmission of the virus. The fact scenario included no other known confirmed cases of avian flu in the United States. While this was an extremely valuable exercise, it is highly improbable that the first diagnosed case of avian flu will actually occur in New Hampshire. However, even based on this scenario, mandatory isolation and quarantine was not used on a large-scale basis to respond to the influenza outbreak.
By definition a pandemic occurs over a wide geographic area and affects a high percentage of the population. In order for isolation and quarantine to be effective, the sick individuals would need to be isolated. A thorough investigation would need to be done to find all people that the sick person had contact with for the time period that they may have been infectious, which may be several days. All of those people would then potentially be quarantined.8 In a pandemic situation it will probably not be the best, or most effective use of public health resources to continue to investigate and issue mandatory quarantine or isolation orders in more than the first few cases.
However, the authority to order mandatory quarantine or isolation does exist as provided in RSA 141-C. This statute was updated in 2002 to provide adequate due process protections, which are discussed below.
“Isolation” means the separation, for the period of communicability, of infected persons from others in such places and under such conditions as to prevent or limit the direct or indirect transmission of the infectious agent from those infected to those who are susceptible or who may spread the agent to others.9
“Quarantine” means the restriction of activities of well persons who have been exposed to a case of communicable disease, during its period of communicability, to prevent disease transmission during the incubation period if infection should occur.10
Isolation and quarantine are carried out by written order of the Commissioner of the Department of Health and Human Services (DHHS) or his designee. “Whenever it is necessary to prevent the introduction or spread of communicable diseases within this state or from another state, or to restrict such diseases if introduced, and when such communicable diseases pose a substantial threat to the health and life of the citizenry, the commissioner shall establish isolation or quarantine for persons who are cases or carriers, or suspected cases or carriers of communicable diseases…” 11 Isolation and quarantine are to be “by the least restrictive means necessary to protect the citizenry which, in the case of an individual, shall be at a place of his or her choosing unless the commissioner determines such place to be impractical or unlikely to adequately protect the public.” Id. Generally the place of isolation or quarantine will be the person’s home. In ordering isolation or quarantine of persons, the commissioner may require that such individuals be treated.12
The written order of the commissioner must include the cause of the quarantine or isolation; the location of the quarantine or isolation; the conditions of any required treatment; and the duration of the isolation or quarantine period.13 Such orders “shall be complied with immediately.”14 An order for isolation or quarantine may be served on the named individual by a law enforcement officer or other individual.15
To protect the due process rights of individuals that might be served with isolation or quarantine orders, RSA 141-C:14-a requires that the official serving the order provide the person being quarantined16 both oral and written notice of their right to appeal the order and the form for doing so. The form cannot require more than the person’s name, address, and signature and the time and date of the signature.17 The quarantined individual has a right to a hearing in Superior Court to contest such an order. Id.
Once the individual contests the order, important and tight deadlines come into play. “Submission of the completed form to the law enforcement officer or other individual serving the order shall be considered a filing with the Superior Court and such officer or other individual shall promptly deliver the form to the Superior Court.”18 The Superior Court, in turn, must schedule a hearing and render a decision upon the request within 48 hours of the time the request was made. The 48-hour deadline may be expanded by the court if exigencies require, but in no event may the hearing and decision occur later than 120 hours after the time the request was made.19 The signed request for a hearing is to be delivered to the Superior Court in the county where the person served resides unless the Superior Court has issued other orders.
RSA 141-C:14-a requires the official serving an order to immediately notify the Superior Court that the person is contesting the order. Importantly, “filing” and commencement of the 48-hour window for hearing and decision occurs at the time the individual signs the form in the officer’s presence, not when the officer physically delivers that form to the court. Understanding the burden this places on officials that may be asked by DHHS to serve quarantine orders, a protocol has been established by Superior Court Chief Justice Robert Lynn. The system established calls for the official, or DHHS counsel, to immediately deliver the form to the court by faxing the appeal request to the Superior Court clerk as well as providing telephonic notice to the clerk and/or presiding judge, particularly if the appeal request is received on a weekend. The original form will then be delivered by hand or by mail to the court at a subsequent time.
When a person subject to an order for isolation or quarantine refuses to cooperate with the terms of the order, law enforcement may become involved. If an isolated or quarantined person “breaks quarantine” by leaving the place of quarantine or a place of treatment and care for persons under isolation or quarantine without the commissioner or his designee’s permission, the commissioner may issue a sworn complaint.20 Under paragraph III of RSA 141-C:12, upon such refusal:
[T]he commissioner may issue a complaint, which shall be sworn to before a justice of the peace. Such complaint shall set forth the reasons for the order imposing isolation or quarantine and the place or facility where the individual shall be isolated or quarantined. Upon being presented with such an order, any law enforcement officer shall take such individual into custody and transport the individual to the place or facility where the individual is to be isolated or quarantined. 21
In addition, it is a misdemeanor for any person to violate or refuse to comply with an isolation or quarantine order.22 Therefore under the authority that law enforcement has to enforce all laws, a law enforcement officer may arrest a person they observe in violation of an order. However, law enforcement would then be faced with the practical challenge of where to safely house the potentially infectious person if the commissioner has not issued an order designating a location at which the person is to be held.
Likewise, when a person subject to an order for treatment by the commissioner refuses to undergo that treatment, the commissioner may swear out a complaint setting forth “the reasons for the order imposing treatment, the nature of the treatment to be provided, and the place or facility where the treatment shall be provided.23 “Upon being presented with such an order, any law enforcement officer shall take such individual into custody and transport (him or her) to the place or facility where the treatment is to be provided.” Id. However, other constitutional rights to refuse treatment, such as sincerely held religious beliefs, are also protected by the statute. If a person appeals an order for treatment or examination they cannot be required to submit to treatment, even by order of the court, although they can be kept in isolation or quarantine for the period necessary to protect society.24
Conducting hearings on appeals of isolated or quarantined individuals in Superior Court obviously requires special consideration. A person who appeals an order is still held in isolation or quarantine pending the outcome of the hearing.25 Therefore they cannot be allowed to go to court and expose the judge, court staff and others to the infectious disease at issue. In order to allow the quarantined individual to present their testimony, the Superior Court has indicated that they will allow the person subject to the order to be present by telephone. Of course, they may send a representative to the court to be present at the hearing, as long as that person is not subject to an isolation or quarantine order. As orders of the commissioner are not criminal, there will not be a right to court-appointed counsel unless the person has been arrested for breaking quarantine under RSA 141-C:21, in which case the normal rules applicable to misdemeanors will apply. The burden of proof at the hearing is on the commissioner to show by clear and convincing evidence that the person poses a threat to public health and that the order of quarantine is warranted to alleviate the threat.26
What is more likely to occur in the event of flu pandemic is the use of one or more types of voluntary isolation and quarantine. Voluntary isolation and quarantine appear to be much like mandatory isolation and quarantine except that the health official would simply ask the infected or exposed person to stay home and not go out until they recover or the incubation period has passed. For example, during the SARS outbreak in Toronto, approximately 23,000 – 29,000 persons were voluntarily quarantined.27 They were instructed not to leave their homes or have visitors. They were told to wash their hands frequently, to wear masks when in the same room as other household members, not to share personal items (e.g., towels, drinking cups, or cutlery), and to sleep in separate rooms. In addition, they were instructed to measure their temperature twice daily. If any symptoms of SARS developed, they were to call Toronto Public Health or Telehealth Ontario for instructions.28 During Toronto’s experience, almost all those asked to comply did so voluntarily. Id.
Toronto also developed the concept of “work quarantine,” which was applied to healthcare and EMS workers, in order to permit those systems to continue to operate while large numbers of their workers were in quarantine. At one point, Toronto had about 400 of the 875 paramedics operating under “work quarantine”—they were permitted to go to work, using appropriate personal protective equipment (i.e. face masks, gloves) and other infection control precautions and could drive straight home, where they maintained appropriate distance and other separation measures from others in the household. However, they were restricted from engaging in any other activities or going any place else.29 Although this was apparently mandated in Toronto, the same concept could be used in New Hampshire on a voluntary basis.
Another tool in reducing the spread of flu pandemic may be voluntary or mandatory restrictions on public gatherings. In New Hampshire, during the Spanish Flu, many towns ordered schools and all public gathering closed.
The United States Department of Health and Human Services (HHS) Pandemic Influenza Plan also suggests limitations on public gathering be considered and states that early closure of schools may be particularly effective in limiting the spread of the disease.31 Limiting public gatherings is also listed as a community-based containment measure in the State of New Hampshire Pandemic Influenza Plan.32 On the state level, authority to order the closure of public events is currently vested in the Governor under the emergency powers for declared disasters.33 Local authority may also exist under the emergency management authority of local government and the general power of towns to govern by ordinances.34
The bottom line in limiting the impact of a flu pandemic will be the level of compliance by individuals with the prevention measures. At a recent series of workshops presented jointly by DHHS public health officials, Safety and the Attorney General’s Office to educate law enforcement, community public health and court staff on pandemic issues related to isolation and quarantine, Karen Salome, one of DHHS public health nurses, emphasized repeatedly the standard preventative measures: stay home if you are sick, cover your mouth if you cough and most importantly, wash your hands and then wash them some more.35 Many of us have a tendency to ignore a cough, or even a fever, and go to work anyway. This is not helpful to containing a disease outbreak and, in a pandemic situation, may endanger our business and co-workers.
If a flu pandemic knocks out 30-40 percent of the population, the question will become whether the day-to-day business of private industry, including law offices and government, can continue to function. What will be the increased demands on our legal system? The next two sections will attempt to address some of those issues or at least pose the relevant questions.
III. Business and Individual Planning
Every practitioner, whether they are in a solo law office, or a small, medium or large firm, a corporate legal department, in government service, a prosecutor or judge, has dealt with the difficulty of juggling priorities when illness occurs, whether it is personal inability to attend to business or the absence of other professionals on whom we depend. While we are used to dealing with one or two of our fellow employees being sick and unavailable at any given time and are able to absorb the extra workload on a short-term basis, a true pandemic would likely stress these coping mechanisms beyond their capacity. For example, in a firm with 20 attorneys, five paralegals and ten administrative support staff, if 30-40 percent of the population is sick, then you will have six to eight of the attorneys, two paralegals and three to four of the support staff out, possibly all at the same time. Additionally, if people that are well but have been exposed to the illness are quarantined, there will be an additional loss of staff in the office. Further workforce attrition may well occur if the schools are closed as parents that count on the schools to take care of their children during the day will need to stay home.
Emergency preparedness planners have long advocated that all government operations, as well as all businesses, should have continuity of operations plans (COOP) to deal with disasters.36 “COOP planning is simply a ‘good business practice’—part of the fundamental mission of agencies as responsible and reliable public institutions.” Id. However, the conventional type of COOP focused more on solutions to address scenarios that result in inability to access physical locations – such as having alternative offices, computer and data back-ups and the like. The challenge for continuity of operations planning for a pandemic is different – the office is still standing and available, however, there are just not enough workers there to carry out the normal day-to-day functions.
The HHS Center for Disease Control (CDC) has published a pandemic business planning guide, available on its website.37 While this plan is aimed more at large companies, it contains a number of provisions that all offices should consider implementing. Some of the most important of these, amended for legal practices generally, include the following:
• Establish policies for preventing influenza spread at the worksite (e.g. promoting respiratory hygiene/ cough etiquette, and prompt exclusion of people with influenza symptoms).
• Establish policies for employees who have been exposed to pandemic influenza, are suspected to be ill, or become ill at the worksite (e.g. infection control response, immediate mandatory sick leave).
• Establish policies for flexible worksite (e.g. telecommuting) and flexible work hours (e.g. staggered shifts).
• Establish policies for employee compensation and sick-leave absences unique to a pandemic (e.g. non-punitive, liberal leave), including policies on when a previously ill person is no longer infectious and can return to work.
• Provide sufficient and accessible infection control supplies (e.g.hand-hygiene products, tissues and receptacles for their disposal) in all business locations.
• Enhance communications and information technology infrastructures as needed to support employee telecommuting and remote client access.
• Identify essential employees and other critical inputs required to maintain business operations by location and function during a pandemic. Thought should also be given to designating an alternate chain of command if necessary.
Several enormous advantages exist today for dealing with a pandemic that did not exist during the 1918 Spanish flu outbreak. While medical technology has obviously improved, the availability of information technology that can allow work to continue without exposing co-workers to infectious conditions should not be overlooked. Remote access to data bases, including legal research tools such as Casemaker, available to all bar members through the NHBA from any location with internet access, means that attorneys can remain productive even if they are at home taking care of a child that is home from school due to school closure, a sick family member, or waiting out a quarantine period after having been exposed. Of course, electronic solutions need to be carefully implemented to be sure that adequate security is maintained, particularly of confidential client information.
Personal planning is equally as important. As President Bush has said: “While the federal government will use all resources at its disposal to prepare for and respond to an influenza pandemic, it cannot do the job alone. This effort requires the full participation of and coordination by all levels of government and all segments of society... perhaps most important, addressing the challenge will require active participation by individual citizens in each community across our nation.”38 CDC has also published a pandemic flu planning checklist for individuals and families39 in the event that grocery supplies, fuel, banking services and medical services become disrupted. If you or any family member have a medical condition that requires continued care, you should have a plan established in advance for addressing those needs when medical services may be limited.
One of the biggest challenges that communities will face during a pandemic is organizing support for those that either are ill, but do not need acute medical care, or that have been exposed and are asked to abide by voluntary quarantine restrictions. Volunteers to bring food and supplies to those staying at home so that they can avoid infecting others will be critical. Mental health support to address the fear and isolation that goes with being exposed to a potentially virulent disease will also be important. People are able to carry on their jobs better and easier if they know that their families and loved ones are as safe and secure as possible.
IV. Demand for Legal Services
This is a topic that provides more questions than answers. The informed guesses about the likelihood, severity, length and impact of a possible flu pandemic are just that, guesses. It may seem to some to be a waste of scarce resources to spend so much time and effort planning for something that may never occur, or even if it does, may end up passing without a whimper, much as the anxiety over Y2K passed. However, as Hurricane Katrina demonstrated, the unlikely can happen.
In order to conceptualize the possible impact, comparing a “normal” flu season to the other pandemic outbreaks in this century seems like an objective starting point. In a normal flu season every year in the United States, on average: 5 percent to 20 percent of the population gets the flu, more than 200,000 people are hospitalized from flu complications, and about 36,000 people die from flu.40 The total US population in 2006 was approximately 300 million.41 Morbidity statistics from prior flu pandemics are as follows:
• 1918-1919 Most severe, caused at least 675,000 U.S. deaths (US population 105 million)
• 1957-1958 Moderately severe, caused at least 70,000 U.S. deaths (US population 179 million)
• 1968-1969 Least severe, caused at least 34,000 U.S. deaths.42 (US population 204 million) Id.
Applying these figures to the current population base would mean that a flu outbreak as severe as the 1918 Spanish flu could result in 1,914,000 deaths and 10.6 million people needing hospitalization. The 1957-58 outbreak would be equivalent today to 117,000 deaths and 650,000 hospitalized, while the 1968 outbreak would be equivalent to 51,000 deaths and 283,333 hospitalizations.
A fairly obvious impact on the legal profession would likely be that, with an increased mortality rate, there will be an increase in probate and estate work associated with these deaths. However there are many other less obvious impacts that may occur.
If businesses are unable to perform normally, there may be breaches of contractual obligations that are unavoidable. There may also be an increase in personal and business bankruptcies. If people are unable to work for extended periods of time, they may fall behind on rent or mortgage payments, as many of the most vulnerable workers do not have paid sick leave. These are most likely only a few of the many ramifications that may result if there is a widespread social disruption during a severe pandemic.
From the law enforcement perspective, a breakdown in essential services may result in a rise in crime, triggering more criminal prosecutions. Also, if prophylactic medical supplies, such as anti-viral medications are rationed or controlled by the government during an outbreak, there may be black market violations, price-gouging and other enforcement actions necessary. Additionally, enforcing any restrictions on public gatherings, providing security for public health clinics and distribution sites and, when a vaccine becomes available, providing security and assisting in transportation and distribution of those supplies, will also likely fall on law enforcement.
The courts and the legal profession may also be faced with unique questions concerning the standard of care that is applicable under the emergency conditions present during a pandemic outbreak. For instance, given the likelihood that hospital and medical community resources may be taxed beyond capacity, can some types of services be discontinued for the duration, such as elective surgeries? Constitutional issues related to travel limitations or personal freedoms and balancing those rights against the protection of the public health as a whole are likely to be thorny. A Pandemic Preparedness Planning Committee that includes a broad cross-section of the stakeholders that have responsibility for responding to a pandemic has been formed on the state level to assist DHHS, the state and local communities in addressing issues as they arise. While foresight is not as perfect as hindsight, as long as we are committed to our New Hampshire heritage of pulling together in a crisis, individually and as a profession, then New Hampshire will be able to weather a pandemic with the least impact possible.
1. Merriam Webster Online Medical Dictionary,
2. For complete list see http://www.who.int/csr/disease/en/.
3. Avian Flu: Assessing the Pandemic Threat, January, 2005, WHO publication, Dr. Lee Jong-Wook, http://whqlibdoc.who.int/hq/2005/WHO_CDS_2005.29.pdf, pg. 10.
4. Center for Disease Control (CDC) website, flu terms defined: http://www.pandemicflu.gov.
5. Center for Disease Control (CDC) website, Pandemic and pandemic threats since 1900; http://www.pandemicflu.gov.
6. Opening Remarks Prepared for Delivery By the Honorable Mike Leavitt, Secretary of Health and Human Services, May 26, 2006.
7. Now reorganized as the Division of Homeland Security and Emergency Management. Laws of 2006, Chapter 290:12.
8. See NH Pandemic Influenza Plan on the DHHS website, particularly Section III, Operation/Plans, 2.4 Case Investigation and 2.5 Contact Investigation. The plan can be found at: http://www.dhhs.nh.gov/NR/rdonlyres/eezi3h2hnpt3ow4svczqinfz22ujnqykos67ra7feja2vjotsrdt224l3eqxrlw7
9. RSA 141-C:2, XII.
10. RSA 141-C:2, XIII.
11. RSA 141-C:11, I.
12. RSA 141-C:11, III.
13. RSA 141-C:12, I.
14. RSA 141-C:12, II.
15. RSA 141-C:14-a.
16. As used herein references to quarantine refer also to isolation and vice versa as the statutory requirements are the same for both under RSA 141-C.
17. RSA 141-C:14-a, I.
18. RSA 141-C:14-a, II.
19. RSA 141-C:14-a, III.
20. RSA 141-C:13, II, III.
21. This is in part at least why there will always be a practical limitation on the usefulness or ability to enforce mandatory quarantine or isolation, there is a limited number of secure locations in which person that refuse to comply could potentially be held.
22 RSA 141-C:21.
23 RSA 141-C:15, VI.
24 RSA 141-C:14-a,IV and VII.
25 RSA 141-C:14-a, IV.
26. RSA 141-C:14-a,V.
27. Quarantine, Isolation and Other Legal Issues from the SARS Experience: Concerns for Local Health Officials, Susan Allan, MD, JD, MPH, Health Director, Arlington, Virginia, http://bt.naccho.org/E-newsletter-archive/Quarantine-and-Isolation.htm.
28. Toronto Public Health. Severe acute respiratory syndrome (SARS), 2003 May 29 [cited 2003 Aug 30]. Available from: http://www.toronto.ca/health.
29. Quarantine, Isolation and Other Legal Issues from the SARS Experience: Concerns for Local Health Officials, Susan Allan, MD, JD, MPH,
Health Director, Arlington, Virginia, http://bt.naccho.org/E-newsletter-archive/Quarantine-and-Isolation.htm.
30. Courtesy of article on Spanish Flu from the Dover Public Library that can be found at; http://www.dover.lib.nh.us/DoverHistory/spanish_flu_epidemic.htm.
31. HHS Pandemic Influenza Plan, Supplement - Community Disease Control and Prevention; http://www.hhs.gov/pandemicflu/plan/sup8.html#IV.B.2.c.
32. 2.6.c. Community-Based Containment Measures, pg. 35; http://www.dhhs.nh.gov/NR/rdonlyres/eezi3h2hnpt3ow4svczqinfz22ujnqykos
33. “To perform and exercise such other functions, powers, and duties as are necessary to promote and secure the safety and protection of the civilian population.” RSA 4:45, III(e).
34. RSA 21-P:39 and RSA 31:39-b.
36. For federal agencies, see Federal Preparedness Circular (FPC) 65, June 15, 2004; http://www.fema.gov/txt/government/coop/fpc65_0604.txt.
41. All population figures are from the nearest census figures from the United State Census Bureau Historical data.
42. At first glance it is not clear why this was considered a “pandemic” as the mortality rate is not as high as the normal flu season mortality rate, except that in 1968, 34,000 of a total US population of 204,053,000 would equal .00017% compared to the approximately 36,000 of a total 300,000,000 US population in 2006 which equals .00012%. In other words, based on today’s population base, the 1968 flu outbreak would likely have had a mortality rate of approximately 51,000.