SNFs Must Conduct Pre-Admission Criminal History Background Checks: “Knowing is Half the Battle” and Care Planning is the Other Half
By Kathleen May-Mazzocco
The jury made their decision. Seventy-eight year old Lillian Portelli suffered no injuries when her neighbor sexually assaulted her in a skilled nursing facility (SNF). Edwards, her attacker, used his wheelchair to wedge the door shut, making it difficult to open when staff realized something was amiss. The jury found Lillian’s advanced Alzheimer’s disease prevented her from recognizing what was happening and her inability to remember the graphic details of the assault rendered her unharmed.
In and around 2005, stories of elderly SNF residents being sexually assaulted by fellow residents with sexually deviant pasts became prevalent in the media and minds of America. News stories describe victims in facilities either negligent in preventing the sexual offense or helpless due to a lack of knowledge that they admitted a former sex offender. The term “sexual offense” encompasses a broad spectrum of crimes that are ultimately a violent act in which the offender uses sexual contact as his weapon.
Health care, medical and legal professionals as well as advocacy organizations hold differing opinions on what prevention tactics most effectively address the risk of sexual offender placement in SNFs. Specifically, opinions vary as to what means of sexual offender notification, if any, should be employed to provide SNFs with knowledge and to what extent the facility should share that information with residents and families.
The pros and cons of strategies for both the sexual offender and the community where he resides must be considered when contemplating a resolution. Proponents point to the vulnerability of the long term care population, a rise in the number of offenders’ placement in facilities and the difficulty of prosecution as justification for drastic strategies. Opponents fear that these strategies amount to “cruel and unusual” punishment as cases of recidivism in SNFs are rare due to the constant supervision of residents by trained staff. They further feel that notification of facilities impinge on the offender’s right to privacy.
The Risk for Sexual Offenses in SNFs is Rising. Bill Clinton proposed that the aging of the Baby Boomers is “one of the central challenges of the coming century…” With a rapidly growing elderly population facing a one in three chance of being placed in a SNF,  the implications of sexual offenders in SNFs is an issue all Americans need note. By 2030, one in five Americans will be elderly. With a death rate in SNFs as high as twelve percent, Americans have a one in thirty-six chance of becoming a nursing home victim.
A Perfect Cause (APC) advocacy group, reported that an Oklahoma court ordered a forty-three year old gentlemen charged with first degree murder to a SNF despite records indicating that he posed a substantial risk of harm to others. APC also discovered over 1,600 registered sex offenders currently residing in American SNFs. Wes Bledsoe, APC’s founder, profiled current sexual offenders living in SNFs with prior convictions  and found convictions or charges of aggravated sexual assault, level three sexual offenses, and rape, sex abuse and unlawful sexual penetration. Due to the publication of Bledsoe’s reports and the resulting worry it developed among Americans, the Government Accountability Office (GAO) conducted a study for Congress in which it reported 700 registered sex offenders living in SNFs in 2005.
While neighboring facility residents are most vulnerable, facility employees, volunteers and visitors are also placed at risk. As Bledsoe stated, “When you put predators in with the prey, somebody’s going to get bit.” APC uncovered over sixty cases of documented sexual offenses in skilled nursing facilities by former convicts. If the United States legislature, as representatives of the American people, who are aging at a rapid pace, does not take steps to prevent future sexual offenses by offenders residing in SNFs, the problem will escalate.
Purpose of Notification Statutes: Protect and Defend Children. Current sexual offender notification, registry and residency restriction statutes were enacted in direct response to sexual crimes upon children. In 1994, Congress passed the Jacob Wetterling Crimes Against Children and Sexually Violent Offenders Act requiring all states to create a sex offender registry. Jacob’s Act provides guidelines for registration programs, including a compulsory ten-year registration for any sexually violent offense and the designation of sexually violent predator attaches a mandatory lifetime registration.
Congress decided that the registration requirements provided for in Jacob’s Act were not enough to protect children, and as a result amended Jacob’s Act with Megan’s Law. This legislation added the requirement that states must provide communities with notification when a sexual offender is released into the community if necessary for their protection.  The premise behind notification statutes is to empower communities with knowledge of a sexual offender’s whereabouts, thereby protecting them. President Bush further passed the Adam Walsh Child Protection and Safety Act of 2006. Among other things, this Act created a national registry database available to United States citizens on the internet.
While sexual offenders have argued that notification statutes and residency restrictions violate their constitutional rights, these statutes have been upheld as required under public policy to protect the public safety. Offenders continue to challenge the statutes, contending they rise to the level of cruel and unusual punishment prohibited by the Eighth Amendment because public awareness presents a chance that the offender may become the target of retaliation. Consulting the legislature’s intent, courts have continuously determined public safety and child protection are valid state objectives.
Extend Notification Statutes to Protect and Defend Vulnerable Adults. In order for society to begin to protect our most vulnerable citizens, we must first value them and recognize their susceptibility. Individuals are placed in SNFs when they become frail and are no longer capable of caring for themselves. The Older Americans Act, passed in 2006, defines frail with respect to an individual over age sixty as unable to perform at least two activities of daily living (ADLs) without assistance or “due to cognitive and mental impairment requires substantial supervision because the individual behaves in a manner that poses a serious health or safety hazards to the individual or to another individual.”
Whether placed due to age, physical or mental conditions, SNF residents are a vulnerable and frail population. Most elderly victims of sexual assault are female and postmenopausal which results in a change in the body causing tissue and skin to become fragile, thereby making a sexual crime more physically damaging. A diagnosis of dementia indicates cognitive deficits. The elderly victim may lack the ability to fight off an offender physically, mentally or as a result of a combination of both. If a sexual assault has occurred it may be difficult for the facility staff or the resident’s family to correlate common signs of sexual abuse such as complaints of pain, mistrustful behaviors, nightmares or symptoms of depression, with the assault due to the numerous illnesses from which residents suffer. As a vulnerable group, SNF residents rely on facility staff to attend to their needs and provide a dignified, quality of life.
Increasing their defenselessness, SNF residents are “captive,” in that they cannot leave the facility, and their mobility within the facility is limited. Victims literally live next to their attackers. A resident in a SNF cannot simply begin to lock her door at night or add a deadbolt. Residents share rooms and bathrooms. The increased vulnerability of a SNF resident substantiates the need for notification of the facility when a former offender is to be admitted.
Illinois Law Requires SNF's To Check Criminal History and Implement Precautions. While most states have taken no steps to insure the safety of facility residents, Illinois is one of the few that have include SNFs in the definition of community for required notification. In the signing of Illinois’ notification statute, one of the most comprehensive in the nation, Governor Rod Blagovich said, “There is nothing more vile than sex offenders.” This law charges SNFs to request criminal history background checks on all admissions within twenty-four hours of arrival. If the results are reported inconclusive, the facility must conduct a fingerprint check and is responsible for arranging for fingerprints to be taken at the facility.
Illinois law goes beyond notification to the facility through the utilization of a Criminal History Analysis. If the facility background check reveals a sexual offense, the facility must fax the resident’s name and criminal history information to the Department of Public Health (DPH) which is then required to conduct a Criminal History Analysis. In this analysis, the DPH completes a comprehensive assessment of the convicted offender and his crime to administer a Risk Analysis. The Risk Analysis details security measures and precautions the SNF must put into practice. The facility incorporates the Criminal History Analysis Report into the sexual offender’s individualized plan of care. The working relationship between the DPH and admitting SNF provides the facility with necessary notification to incorporate precautions into an effective care plan for the offender, while appropriately considering the offender’s rights by reevaluating his risk and, in turn, ensuring the protection of all residents including the offender.
Informing Unnecessary Parties under Illinois Law Goes Too Far. Illinois is proactive in protecting their SNF citizens; however, some of their notification strategies are to the detriment of an offender’s rights. Illinois ventures beyond criminal background checks and the Criminal History Analysis to require facilities to provide residents, both prospective and current, along with facility employees, with written notice of their right to inquire into the possibility of sexual offender residents. They must prominently post a notice in the facility with a statement that sexual offender information can be obtained from the Illinois State Police. While these steps are genuine in their purpose to protect SNF residents, notifying fellow residents of the admittance of a former sexual offender does not serve the purposes notification statutes were originally enacted to accomplish. Passion to protect the vulnerable often drives legislatures to take fanatical steps, and in the process the rights of the sexual offender are often ignored. At some point, “enough is enough” and as a society we must recognize that people make mistakes and that all sexual offenders do not possess the same risk of recidivism.
While the United States Constitution does not specifically enumerate a constitutional right to privacy, the Supreme Court has identified that its provisions suggest the right exists. In Griswold v. Connecticut, the Supreme Court found in the language and history of the Ninth Amendment that the framers of the Constitution believed United States citizen’s hold fundamental rights not specifically cited in the Bill of Rights. Justice Douglas’ majority identified in the First Amendment “a penumbra where privacy is protected from governmental intrusion” including privacy in association.
In conjunction to a sexual offender’s constitutional right to privacy, states should recognize Congress has previously enacted laws to protect a resident’s privacy. The Health Insurance Portability and Accountability Act (HIPAA), passed in 1996, sets forth conditions of the level of privacy residents are entitled to.
Once the sexual offender is admitted to a SNF, the Nursing Home Reform Act catalogs specific rights enjoyed by all facility residents. It provides that residents have “a right to a dignified existence, self-determination, and communication” in and outside of the facility. This extends to privacy in accommodations, medical treatment, written and telephone communications, visits and meetings from family and participation in resident groups. Explicitly stated is the right to confidentiality of medical and personal records. The State Operations Manual, published by the Centers for Medicare and Medicaid Services (CMS) to provide interpretive guidelines for long-term care facilities, interprets a right to privacy to include all medical, social and financial records as they exist in any form.
Notification statutes requiring facilities to inform other residents, or their families, breach the resident’s right of privacy provided by federal law. Only institutions and individuals who legitimately need to know should be given offender registration information.
Pre-Admission Background Checks & Effective Care Plans: “Knowing is Half the Battle.” Congress must mandate SNFs complete pre-admission background checks and the results must be incorporated into an effective care plan. “Knowledge gives us the power to intervene” and minimize the horrific effects of sexual crimes. Armed with the ability to identify sexual offenders, facilities may wish to develop a sexual offender protocol as they do for residents with multiple falls or other illnesses. In order for the facility to implement a protocol or precautionary plan, however, they must first be aware the risk exists.
Opponents of notification argue the effectiveness of the strategies and propose stronger education of our children on how to act as a superior solution. Education would not be effective for SNF residents suffering from dementia and Alzheimer’s as they affect cognitive abilities, preventing a resident from understanding why she should act in the directed manner or to remember the steps she was told to take.
Knowing is Only Half the Battle, The Other Half is the Care Plan. The Omnibus Budget Reconciliation Act of 1987 (OBRA) included the Nursing Home Reform Act which provides the cornerstone of SNF care in facilities’ obligation to provide services to “attain or maintain the highest physical, mental and psychological well-being” of residents. In order to meet the cornerstone, facilities implement an individualized plan of care upon admission for each resident who is assessed periodically thereafter.
While the NHRA requires an admission assessment, it does not mandate the use of a standardized assessment tool. Compiling the information from the assessment conducted by all disciplines in the facility, the individual plan of care addresses the resident’s medical, nursing and psychosocial needs. In its interpretation, the Center for Medicare and Medicaid provides the facility is responsible for considering all of the residents’ needs. Currently, resident assessments do not gather information about past criminal history. In formulating individual plans of care, residents would be well served by requiring SNFs to consider past convictions as it would result in a more comprehensive physical, mental and psychological examination and therefore a more thorough plan of care including the necessary rehabilitation a sex offender may need.
A SNF is already required to determine a resident’s needs on a case by case analysis. It follows that a risk for future violence or sexual conduct should be conducted. In deciding the risk of violence or sexual conduct, the facility can consider the offender’s physical and mental abilities, his current health and diagnoses including chance for recovery and whether these increase or decrease the risk to others. If the risk is not individually identified, a presumption of high risk may lead to unnecessary denial of admission or seclusion of all offenders who may no longer pose any risk. The GAO study also concluded it may be more appropriate to focus on residents' individual behaviors than prior convictions. In fact, an Ohio facility specializing in residents with various behavior issues houses many sexual offenders and has fewer problems with sexual offender residents than from residents with other behavior problems.
There will be instances in which the conducting of a criminal history background check will reveal that a former sexual offender is not appropriate for SNF placement. Despite an offender’s physical limitations, facilities must recognize that he may still pose a great threat to other residents. If the facility finds the offender’s behavior puts other residents’ safety in danger, the offender can be transferred or discharged. If the offender poses a high risk or is exhibiting sexually violent behaviors that cannot be controlled, it may be a more appropriate placement to have them civilly committed rather than placed in a SNF. Many states currently have civil commitment statutes in place.
Conclusion. “Providing long term care for those who have any type of criminal past is a critical societal issue, the solution for which must encompass not only health care providers and their patients but also law enforcement and our health care oversight federal and state agencies,” Tom Coble, representative of American Health Care Association, told the House Small Business Committee.
By mandating that facilities conduct pre-admission background checks upon admission of all residents, facilities will be empowered with the knowledge necessary to ensure that their residents receive high quality care in a safe environment. It provides the proper balance between the rights of residents to maintain their dignity while allowing facilities to provide offenders with the privacy they are entitled to. The horrific tales of vulnerable residents being assaulted by another resident do not need to continue to be told. As Congress has made a difference in the lives of children, so can they make the same difference in the life of SNF residents, and they must.
 Nora Lockwood Tooher, Jury Rules in Favor of Nursing Home in Nevada Patient Sexual Assault Case, Lawyers Wkly USA (July 4, 2005).
 Tooher, supra n. 2 (the case could not be located, nor the plaintiff’s attorneys reached for comment). The Nevada Supreme Court denied certiorari for stipulation. Green v. Barton Healthcare Systems, 178 P.3d 760 (Nev. 2006).
 Wes Bledsoe, A Perfect Cause, Predators in America’s Nursing Homes, Reports, Predators in America’s Nursing Homes Ongoing Investigations and Reports 2004-2006, http://www.aperfectcause.org/APC-US_CongressReport-CriminalOffendersOffensesInLTC-April2006.pdf 11(last accessed April 2, 2010) [hereinafter Bledsoe, Ongoing Reports 2004-2006].
 See generally Diane E. Felix & Christal E. Edwards, Commentary: Sexually Abusive Residents Are Bane of Mo. Nursing Homes, Missouri Lawyers Weekly (Sept. 19, 2005) Patricia Lopez, Hatch Sues Nursing Home Sex Offenders Housed with Patients, Suit Says, Star Tribune: Newspaper of the Twin Cities (May 27, 2004).
 John Q. LaFond, Preventing Sexual Violence: How Society Should Cope with Sex Offenders 43-44 (American Psychological Association 2005).
 A sexual offender can be male or female but for the purposes of this paper I will refer to the sexual offender in the male tense.
 Angelo P. Giardino, Elizabeth M. Datner & Janice Asher, Sexual Assault: Victimization Across the Life Span, A Clinical Guide, xiii (G.W. Medical Publishing, Inc. 2003).
 See generally Joseph L. Lester, Off to Elba! The Legitimacy of Sex Offender Residence and Employment Restrictions, 40 Akron L. Rev. 339 (2007) (Lester feels better solutions exist than registration, notification and residency restrictions).
 Duane Marsteller & Natalie Neyesa Alund, Loophole in Sexual Predator Law, Bradenton Herald 1 (Jan. 13, 2008) (citing Judy Cornett, executive director of Safety Zone Advocacy, who acknowledges there are offenders who target vulnerable adults and advocates for background checks on SNF residents); see also, Chris Casteel, House Panel Hears of Rest Home Rape Oklahoma Bill Tries to Keep Predators Out of Nursing Facilities, 5A Oklahomian (July 24, 2008) (citing Tom Coble speaking on behalf of The American Health Care Association, in representing while the cases may be “rare”, the nature of the crime warrants protection).
 A Perfect Cause, Reports, Predators in America’s Nursing Homes: Registered Sex Offenders Residing in Nursing Homes 2005 Report, http://www.aperfectcause.org/APerfectCause-PredatorsinAmericasNursingHomes-2005 Report.pdf 2 (last accessed April 2, 2010).
 David Jackson & Gary Marx, Nursing Homes Toll: 86 Sex Cases, 1 Arrest, 3 Chi. Tribune (Jan. 27, 2010) (citing Ronald Costen, a former criminal prosecutor and director of Temple University’s Protective Services Institute).
 LaFond, supra n. 7, at 95.
 Marsteller & Alund, supra n. 11.
 Kimberly B. Wilkins, Sex Offender Registration and Community Notification Laws: Will These Laws Survive? 37 U. Rich. L. Rev. 1245 at 1253.
 Dayton, Wood & Belian 1.
 Wes Bledsoe, A Perfect Cause, www.aperfectcause.org (last updated 2008).
 Frank B. Hobbs, The Elderly Population, http://www.census.gov/population/www/pop-profile/elderpop.html (last updated July 8, 2008).
 Wes Bledsoe, A Perfect Cause, www.aperfectcause.org (last updated 2008).
 Wes Bledsoe, A Perfect Cause, Predator Press Releases, Murder Suspect and Felon, 43 Ordered to Live in Nursing Home, http://www.aperfectcause.org/predatorpress.html (last updated 2008).
 H.R. Small Bus. Comm., Subcomm. Investigation & Oversight, Impact of Predators in Long-Term Care on Small Business Operators, 110th Cong. 1 (July 23, 2008).
 News agencies have called Wes Bledsoe “The Nursing Home Watchdog.” H.R. Small Bus. Comm., supra n. 22, at 1. Due to his studies on of sexual predators residing in SNFs, the Government Accountability Office began a Federal investigation. Wes Bledsoe, About, Our Founder, http://www.aperfectcause.org/founder.html (last accessed April 23, 2010). In his signing of the OK bill to build a separate facility for sexual offenders, Governor Brad Henry recognized Bledsoe as the driving force of the bill. Id.
 Bledsoe, Ongoing Reports 2004-2006, supra n. 4, at 2.
 Id. at 7. Tyrone Barber was a fifty-four year old living in a Chicago, Illinois facility. Id.
 Id. at 12. John Enos was convicted of rape and classified as a level 3 offender, posing a high risk of recidivism. Id.
 Id. at 25. Robert Lovingier was previously charged as a fugitive from justice. Id.
 Ziva Branstetter, More Sex Offenders Are Found, A17 Tulsa World (July 31, 2005).
 Marsteller & Neysa Alund, supra n. 11.
 H.R. Small Bus. Comm., supra n. 22, at 4.
 42 U.S.C.A. §14071 (West 2006).
 42 U.S.C.A. §14071 (West 2006); see also Top Ten Reviews, Sex Offender Registry Review, http://sex-offender-registry-review.toptenreviews.com/index2.html (last accessed April 19, 2010) (provides a state-state-by-state analysis and rating of information is provided to the public, search factors available to search with, the types of risk indicators each states utilize and any additional features the registries offer).
 42 U.S.C.A. §14071(b)(6) (West 2006); see also U.S. Government Accountability Office. (March 2006). Long Term Care Facilities: Information on Residents who Are Registered Sex Offenders or Are Paroled for Other Crimes, 3 (Publication number GAO-06-326) at 9.
 42 U.S.C.A. §14071 (West 2006).
 42 U.S.C.A. §14071(e)(2) (West 2006). A state is not incompliance with the necessary community notification if they only inform law enforcement, government officials, victims or prospective employers of the offenders release into the community. Final Guidelines for the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act, as Amended, A.G Order N.2196-98 at 13. States do retain discretion in formulating the circumstances when information will be provided to the community and to what extent. Id. at 582.
 Hope E. Durant, Student Author, A Message to Sex Offenders: Sex Registration and Notification Laws Do Not Infringe upon Your Pursuit of Happiness, 26 J.Legis. 293 (2000) at 312.
 42 U.S.C.A. §16901; Adam’s father, John Walsh, host of America’s Most Wanted, has aided in the “take down” of 1,050 fugitives and bring home fifty missing children. America’s Most Wanted, About John Walsh, http://www.amw.com/about_amw/ john_walsh. cfm (last accessed April 19, 2010).
 42 U.S.C.A. §16918 (West 2006);
 See generally, LaFond, supra n. 7, at 95-103; Wilkins, supra n.16, at 1253-1276; Durant, supra n. 37, 298-312.
 LaFond, supra n. 7, at 95; see also Final Guidelines for the Jacob Wetterling Crimes against Children and Sexually Violent Offender Registration Act, supra n. 36, at 575 (list of cases including: Roe v. Office of Adult Protection, 125 F.3d 47 (2d Cir. 1997); Russell v. Gregoire, 124 F.3d 1079 (9th Cir. 1997), cert denied, 118 S.Ct. 1191 (1998); Doe v. Pataki, 120 F.3d 1263 (2d Cir. 1997), cert denied, 118 S.Ct. 1066 (1998); E.B. v. Verniero, 119 F.3d 1077 (3rd Cir. 1997), cert denied, 118 S.Ct. 1039 (1998); Artway v. Atty Gen., 81 F.3d. 1235 (3d Cir. 1996); Doe v. Kelley, 961 F. Supp. 1105 (W.D. Mich 1997); Doe v. Weld, 954 F. Supp. 425 (D. Mass. 1996); State v. Pickens, 558 N.W.2d 396 (Iowa 1997); Arizona Dep’t of Public Safety v. Superior Court, 949 P.2d. 983 (Ariz. App. 1997); State v. Ward, 123 Wash. 2d 488, 869 P.2d 1062 (Wash. 1994)).
 U.S. Const. amend. VIII.
 LaFond, supra n. 7, at 95.
 Durant, supra n. 37, at 301 (citing Roe v. Farwell, 999 F. Supp 174 (D. Mass. 1998)).
 Id (citing People v. Adams, 581 N.E.2d. 637 (Ill. 1991)).
 Id (discussing court decisions of Doe v. Poritz, 662 A.2d. 367 (N.J. 1995) and Lanni v. Engler, 944 F. Supp. 849 (E.D. Mich 1998).
 Giardino et. al., supra n. 9 at xiii.
 42 U.S.C.A. §3002 (West 2006). Congress stated the objectives of this act include providing a range of services to older citizens as needed and to provide services giving priority to those most economically and socially needed. 42 U.S.C.A. §3003 (West 2006).
 Centers for Medicare and Medicaid Services, State Operations Manual: Appendix PP—Guidance to Surveyors for Long Term Care Facilities 182-183 (Dec. 2, 2009).
 Giardino et. al., supra n.9, at 701.
 Id.at 381. Experts have identified three ways in which offenders attach weaker older adults. Id. at 382 The first is the “confidence” approach in which the offender acquires the victim’s confidence using words. Id. The next is the “blitz” approach in which the offender uses force against the victim. Id. The last approach is one of “surprise” leaving the victim unsuspecting or unconscious. Id.
 Jackson & Marx, supra n. 13.
 H.R. Small Bus. Comm., supra n. 22, at 8.
 210 Ill. Comp. Stat. 45/2-201.5(a) (current through P.A. 96-855 of 2010 Reg. Sess.).
 Office of the Governor, Press Release, Governor Signs Law Requiring Lifetime Supervision for Most Dangerous Sex Offenders (July 10, 2005) (can be found at http://www.idph.state.il.us/public/press05/7.10.05.htm).
 210 Ill. Comp. Stat. 45/2-201.5(a) (current through P.A. 96-855 of 2010 Reg. Sess.).
 210 Ill. Comp. Stat. 45/2-201.5(b) (current through P.A. 96-855 of 2010 Reg. Sess.).
 210 Ill. Comp. Stat. 45/2-201.5(c) (current through P.A. 96-855 of 2010 Reg. Sess.).
 Id. The Criminal History Analysis specifically includes: a consultation with the offender’s parole officer and convicting prosecutor’s office; a review of the statement of facts, police report and victim impact statements; an interview of the sexual offender; a consultation with the facility administrator or medical director of the admitting facility. Id. They must also consider the entire criminal history of the sexual offender and review any evaluations completed. Id. If there are none conducted, one must be requested and reviewed. Id.
 210 Ill. Comp. Stat. 45/2-201.5(d) (current through P.A. 96-855 of 2010 Reg. Sess.).
 IL Stat. 45/2-201.6(f) (current through P.A. 96-855 of 2010 Reg. Sess.).
 210 Ill. Comp. Stat. 45/2-216 (current through P.A. 96-855 of 2010 Reg. Sess.).
 Lester, supra n. 10, at 339.
 Griswold v. Conn., 381 U.S. 479 (1965).
 Id. The Ninth Amendment provides, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” U.S. Const. amend. IX.
 Griswold v. Conn., 381 U.S. 479, 482 (1965). In Justice Goldberg’s concurrence, he found the Ninth Amendment also indicated a right of privacy. Id.
 Government Accountability Office, supra n. 34, at 5.
 42 C.F.R. §483.10 (Westlaw current through April 16, 2010).
 42 C.F.R. §483.10(e) (Westlaw current through April 16, 2010).
 Centers for Medicare and Medicaid Services, supra n. 50, at 30.
 Lafond, supra n. 7 at 123. LaFond believes anyone in the state who does not need to know an offender’s information should not be allowed to access a Web site to obtain it. Id.
 Giardino et. al., supra n. 9, at xiii. Giardano wrote a book defining the problem of sexual assault and discussed treatment and interventions to spread knowledge to mandatory reporters and healthcare officials to ensure better results for those victimized. Id.
 Kansas Department on Aging, Provider Resource Site, Resident Assessment Protocol: Falls, http://www.aging. state.ks.us/AdultCareHomes/BestPractice/Falls/Resident_Assessment_Protocol.pdf (last accessed April 18, 2010). The Kansas Department on Aging provides guidelines to best handle residents at risk of falling. Id. Federal legislation offers no guidance on the supervision of residents with prior convictions of any type. Government Accountability Office, supra n. 34, at 5.
 Lester, supra n. 10, at 372.
 42 U.S.C.A. §1395i-3(b)(2)(West 2006).
 Government Accountability Office, supra n. 34, at 8.
 42 C.F.R. §483.20(k) (Westlaw current through April 16, 2010).
 Centers for Medicare and Medicaid Services, supra n. 50, at 182-183 (interpreting 42 C.F.R. §483.20).
 Government Accountability Office, supra n. 34, at 6.
 Government Accountability Office, supra n. 34, at 2.
 H.R. Small Bus. Comm., supra n. 22, at 5.
 42 C.F.R. §483.12(a)(iii) (Westlaw current through April 16, 2010). When a facility wishes to transfer a patient, they must adhere to a strict formula including 30 days notice in writing, physician documentation of the reason and discharge information of the date, to where and the reasons for discharge. 42 C.F.R. §483.12(a) and (b) (Westlaw current through April 16, 2010). A facility can transfer a resident if (i)the facility can no longer meet the resident’s needs, (ii)the resident has improved and no longer requires skilled care, (iii)safety of other individuals is endangered, (iv)the health of other individuals in the facility is endangered, (v)the resident has not paid their bill and (vi) the facility closes down. 42 C.F.R. §483.12(a)
 W. Lawrence Fitch & Debra A. Hammen, The New Generation of Sex Offender Commitment Laws: Which States Have Them and How Do They Work?, in Bruce J. Winick & John Q. LaFond, Protecting Society From Sexually Dangerous Offenders, 27, 28 (Am. Psycho. Assn. 2003).
 Susan Feeney, American Health Care Association, Long Term Care Leader Calls For National Database of Sexual Offenders, www.ahacancal.org/News/news_releases /Pages/23Jul2008.aspx. (July 23, 2008).
Kathleen May-Mazzocco graduated from Eastern Illinois University, cum laude, in 2005 with a Bachelor of Science degree in Business. She received her Juris Doctor, magna cum laude, from Stetson University College of Law. She distinguished herself by receiving a Certificate of Concentration in Elder Law. She was sworn in to the Illinois Bar in 2011. She joined HUCK & BRISSKE, LLC and concentrates her practice in elder law, probate, estate and trust administration, and wealth transfer and estate planning.