BILL ANALYSIS                                                                                                                                                                                                    







                      SENATE COMMITTEE ON PUBLIC SAFETY
                            Senator Loni Hancock, Chair              A
                             2013-2014 Regular Session               B
                                                                      
                                                                     6
                                                                     8
          AB 68 (Maienschein)                                         
          As Amended April 11, 2013
          Hearing date:  May 14, 2013
          Penal Code
          SM:jr

                                           
                         MEDICAL PAROLE: COUNTY NOTIFICATION  

                                       HISTORY

          Source:   County of San Diego & San Diego District Attorney's  
          Office
                                          
          
          Prior Legislation: SB 1399 (Leno), Chap. 405, Stats. of 2010.
                       AB 1539 (Krekorian) Chap. 740, Stats. of 2007
                       AB 1946 (Steinberg) - 2003-2004; vetoed
                       AB 675 (Migden) - vetoed; 2001
                       AB 29 (Villaraigosa) -Chap. 751, Stats. 1997


          Support:  California District Attorneys Association; California  
                    Parole, Probation and Correctional Officers  
                    Association; California Police Chiefs Association;  
                    California State Association of Counties; California  
                    State Sheriffs' Association; Chief Probation Officers  
                    of CA; Crime Victims Action Alliance; Crime Victims  
                    United; Lassen County; Peace Officers Research  
                    Association of CA; Rural County Representatives of CA;  
                    San Bernardino County Sheriff's Department; Urban  
                    Counties Caucus






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          Opposition:California Attorneys for Criminal Justic; Justice  
                   Now; Legal Services for 
                                 Prisoners with Children; Taxpayers for  
                   Improving Public Safety

          Assembly Floor Vote:  Ayes  76 - Noes  0



                                        KEY ISSUES
           
          SHOULD THE DEPARTMENT OF CORRECTIONS AND REHABILITATION GIVE NOTICE  
          TO THE COUNTY OF COMMITMENT AND THE COUNTY OF PROPOSED RELEASE OF  
          ANY MEDICAL PAROLE HEARING, AS SPECIFIED, AND OF ANY MEDICAL PAROLE  
          RELEASE AS SPECIFIED?

          SHOULD CDCR BE REQUIRED TO MAKE THAT NOTICE AT LEAST 30 DAYS PRIOR  
          TO THE TIME ANY MEDICAL PAROLE HEARING OR MEDICAL PAROLE RELEASE IS  
          SCHEDULED FOR AN INMATE RECEIVING MEDICAL PAROLE CONSIDERATION,  
          REGARDLESS OF WHETHER THE INMATE IS SENTENCED EITHER DETERMINATELY  
          OR INDETERMINATELY?



                                       PURPOSE

          The purpose of this bill is to require (1) that CDCR give notice  
          to the county of commitment, and the county of proposed release  
          of any medical parole hearing, as specified, and of any medical  
          parole release as specified and; (2) require that notice be made  
          at least 30 days prior to the time any medical parole hearing or  
          medical parole release is scheduled for an inmate receiving  
          medical parole consideration, regardless of whether the inmate  
          is sentenced either determinately or indeterminately.
          
           Current law  establishes the medical parole program whereby any  
          prisoner who the head physician of the institution where the  
          prisoner is located determines is permanently medically  
          incapacitated with a medical condition that renders him or her  




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          permanently unable to perform activities of basic daily living,  
          and results in the prisoner requiring 24-hour care, and that  
          incapacitation did not exist at the time of sentencing, shall be  
          granted medical parole if the Board of Parole Hearings (BPH)  
          determines that the conditions under which the prisoner would be  
          released would not reasonably pose a threat to public safety.   
          (Penal Code  3550(a).)

           Current law  states that medical parole shall not apply to any  
          prisoner sentenced to death or life in prison without  
          possibility of parole or to any inmate who is serving a sentence  
          for which medical parole is prohibited by any initiative  
          statute.  (Penal Code  3550(b).)

           Current law  provides that the medical parole law shall not be  
          construed to alter or diminish the rights conferred under the  
          Victim's Bill of Rights Act of 2008: Marsy's Law, including  
          notification of victims of parole proceedings.  (Penal Code   
          3550(b).)

           Current law  states that when a physician employed by CDCR who is  
          the primary care provider for an inmate identifies an inmate  
          that he or she believes meets the medical criteria for medical  
          parole, the primary care physician shall recommend to the head  
          physician of the institution where the prisoner is located that  
          the prisoner be referred to the BPH for consideration for  
          medical parole.  Within 30 days of receiving that  
          recommendation, if the head physician of the institution concurs  
          in the recommendation of the primary care physician, he or she  
          shall refer the matter to BPH using a standardized form and  
          format developed by the department, and if the head physician of  
          the institution does not concur in the recommendation, he or she  
          shall provide the primary care physician with a written  
          explanation of the reasons for denying the referral.  (Penal  
          Code  3550(c).)

           Current law  allows the prisoner or his or her family member or  
          designee to independently request consideration for medical  
          parole by contacting the head physician at the prison or CDCR.   




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          Within 30 days of receiving the request, the head physician of  
          the institution shall, in consultation with the prisoner's  
          primary care physician, make a determination regarding whether  
          the prisoner meets the criteria for medical parole as specified  
          and, if the head physician of the institution determines that  
          the prisoner satisfies the criteria, he or she shall refer the  
          matter to BPH using a standardized form and format developed by  
          CDCR.  If the head physician of the institution does not concur  
          in the recommendation, he or she shall provide the prisoner or  
          his or her family member or designee with a written explanation  
          of the reasons for denying the application.  (Penal Code   
          3550(d).)

           Current law  requires CDCR to complete parole plans for inmates  
          referred BPH for medical parole consideration. The parole plans  
          shall include, but not be limited to, the inmate's plan for  
          residency and medical care.  (Penal Code  3550(e).)

           Current law  provides, notwithstanding any other law, that  
          medical parole hearings shall be conducted by two-person panels  
          consisting of at least one commissioner. In the event of a tie  
          vote, the matter shall be referred to the full board for a  
          decision. Medical parole hearings may be heard in absentia.   
          (Penal Code  3550(f).)

           Current law  requires BPH, upon receiving a recommendation from  
          the head physician of the institution where a prisoner is  
          located for the prisoner to be granted medical parole, to make  
          an independent judgment regarding whether the conditions under  
          which the inmate would be released pose a reasonable threat to  
          public safety, and make written findings related thereto.   
          (Penal Code  3550(g).)

           Current law  authorizes the board or the Division of Adult Parole  
          Operations to impose any reasonable conditions on prisoners  
          subject to medical parole supervision, including, but not  
          limited to, the requirement that the parolee submit to  
          electronic monitoring.  As a further condition of medical  
          parole, the parolee may be required to submit to an examination  




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          by a physician selected by the board for the purpose of  
          diagnosing the parolee's current medical condition.  In the  
          event such an examination takes place, a report of the  
          examination and diagnosis shall be submitted to the board by the  
          examining physician.  If the board determines, based on that  
          medical examination, that the person's medical condition has  
          improved to the extent that the person no longer qualifies for  
          medical parole, the board shall return the person to the custody  
          of the department.  (Penal Code  3550(h).)
           Current law  requires CDCR, at the time a prisoner is placed on  
          medical parole supervision, to ensure that the prisoner has  
          applied for any federal entitlement programs for which the  
          prisoner is eligible, and has in his or her possession a  
          discharge medical summary, full medical records, parole  
          medications, and all property belonging to the prisoner that was  
          under the control of the department.  Any additional records  
          shall be sent to the prisoner's forwarding address after release  
          to health care-related parole supervision.  (Penal Code   
          3550(i).)

           Current law  requires CDCR to reimburse the counties for the  
          costs of medical parolees placed in their counties.  
          Specifically, CDCR is required to 

                 Seek to enter into memoranda of understanding with  
               federal, state, or county entities necessary to facilitate  
               prerelease agreements to help inmates initiate benefits  
               claims.
                 Pay the state share of Medi-Cal costs for medical  
               parolees and to assume responsibility for medical parolees  
               not eligible for public insurance.
                 Directly provide, or provide reimbursement for, services  
               associated with conservatorship or public guardianship.

          (Penal Code  2065.)

           Current law  requires, at least 30 days before the board meets to  
          review or consider the parole suitability or the setting of a  
          parole date for any prisoner sentenced to a life sentence, the  




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          board to send written notice thereof to each of the following  
          persons: the judge of the superior court before whom the  
          prisoner was tried and convicted, the attorney who represented  
          the defendant at trial, the district attorney of the county in  
          which the offense was committed, the law enforcement agency that  
          investigated the case, and where the prisoner was convicted of  
          the murder of a peace officer, the law enforcement agency which  
          had employed that peace officer at the time of the murder.   
          (Penal Code  3042(a).)

           Current law  states that upon request to CDCR and verification of  
          the identity of the requester, notice of any hearing to review  
          or consider the parole suitability or the setting of parole date  
          for any prisoner shall be given by BPH at least 90 days before  
          the hearing to any victim of any crime committed by the  
          prisoner, or the next of kin of the victim if the victim has  
          died.  (Penal Code  3043(a).)

           Current law  provides that an inmate who is released on parole or  
          postrelease supervision shall be returned to the county that was  
          the last legal resident of the inmate prior to his or her  
          incarceration, except as provided.  For purposes of this  
          subdivision, "last legal residence" shall not be construed to  
          mean the county wherein the inmate committed an offense while  
          confined in state prison or a local jail facility or while  
          confined for treatment in a state hospital.  (Penal Code   
          3003(a).)

           Current law  states that notwithstanding the above provision, an  
          inmate may be returned to another county if that would be in the  
          best interests of the public, and provides specified factors for  
          the paroling authority to consider when making the decision to  
          release an inmate to a county other than his or her last legal  
          residence.  The factors give the most weight to the protection  
          of the victim and the safety of the community.  (Penal Code   
          3003(b).)
           Current law  requires CDCR to release the following information,  
          if available, to local law enforcement agencies regarding a  
          paroled inmate or inmate placed on postrelease supervision who  




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          is released in their jurisdictions (Penal Code  3003(e)(1)):


                 Last, first, and middle name.
                 Birthdate.
                 Sex, race, height, weight, and hair and eye color.
                 Date of parole and discharge.
                 Registration status, if the inmate is required to  
               register as a result of a controlled substance, sex or  
               arson offense.
                 California Criminal Information Number, FBI Number,  
               social security number, and driver's license number.
                 County of commitment.
                 A description of scars, marks, and tattoos on the  
               inmate.
                 Offense or offenses for which the inmate was convicted  
               that resulted in parole in this instance.
                 Address, as specified.
                 Contact officer and unit, as specified.
                 A digitized image of the photograph and at least s  
               single digit fingerprint of the parolee.
                 A geographic coordinate for the parolee's residence  
               location for use with a Geographical Information System or  
               comparable computer program.

           Current law  states that whenever any person confined to state  
          prison is serving a term for the conviction of a violent felony,  
          BPH or CDCR shall notify the sheriff or chief of police, or  
          both, and the district attorney, who has jurisdiction over the  
          community in which the person was convicted and, in addition,  
          the sheriff or chief of police, or both, and the district  
          attorney, having jurisdiction over the community in which the  
          person is scheduled to be released on parole or rereleased  
          following a period of confinement pursuant to a parole  
          revocation without a new commitment.  (Penal Code  3058.6(a).)

           Current law  requires that the notification be made by mail at  
          least 60 days prior to the scheduled release date, except as  
          provided.  In all cases, the notification shall include the name  




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          of the person who is scheduled to be released, whether or not  
          the person is required to register with the local law  
          enforcement, and the community in which the person will reside.  
          The notification shall specify the office within CDCR with the  
          authority to make final determinations and adjustments regarding  
          parole location decisions. (Penal Code  3058.6(b)(1).)

           Current law  states that when notice cannot be provided at least  
          60 days prior to release due to circumstances as specified, CDCR  
          shall provide notification as soon as practicable, but in no  
          case shall CDCR delay making the notification more than 24 hours  
          from the time the final decision is made regarding where the  
          parolee will be released.  (Penal Code  3058.6(b)(3).)

           Current law  allows those agencies receiving this notice to  
          provide written comment within 45 days prior to the inmate's  
          scheduled release to BPH or CDCR.  Those comments shall be  
          considered by BPH or CDCR which may, based on those comments,  
          modify its decision regarding the community in which the person  
          is scheduled to be released.  CDCR shall respond in writing not  
          less than 15 days prior to the scheduled release with a final  
          determination as to whether to adjust the parole location and  
          documenting the basis for its decision.  The comments shall  
          become a part of the inmate's file.  (Penal Code   
          3058.6(b)(4).)

           Current law  states that if a court orders the immediate release  
          of an inmate, CDCR shall notify the sheriff or chief of police,  
          or both, and the district attorney, having jurisdiction over the  
          community in which the person was convicted and, in addition,  
          the sheriff or chief of police, or both, and the district  
          attorney, having jurisdiction over the community in which the  
          person is scheduled to be released on parole at the time of  
          release.  (Penal Code  3058.6(c).)

           Current law  provides whenever any sheriff or chief of police is  
          notified of the pending release of a convicted violent felon, as  
          specified, that sheriff or chief of police may notify any person  
          designated by the sheriff or chief of police as an appropriate  




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          recipient of this notice.  (Penal Code  3058.7(a).)

           This bill  would require that, notwithstanding any other  
          provision of law, CDCR give notice to the county of commitment,  
          and the county of proposed release of any medical parole  
          hearing, as specified, and of any medical parole release as  
          specified.

           This bill  would require that notice be made at least 30 days  
          prior to the time any medical parole hearing or medical parole  
          release is scheduled for an inmate receiving medical parole  
          consideration, regardless of whether the inmate is sentenced  
          either determinately or indeterminately.

                    RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION

          For the last several years, severe overcrowding in California's  
          prisons has been the focus of evolving and expensive litigation  
          relating to conditions of confinement.  On May 23, 2011, the  
          United States Supreme Court ordered California to reduce its  
          prison population to 137.5 percent of design capacity within two  
          years from the date of its ruling, subject to the right of the  
          state to seek modifications in appropriate circumstances.   

          Beginning in early 2007, Senate leadership initiated a policy to  
          hold legislative proposals which could further aggravate the  
          prison overcrowding crisis through new or expanded felony  
          prosecutions.  Under the resulting policy known as "ROCA" (which  
          stands for "Receivership/ Overcrowding Crisis Aggravation"), the  
          Committee held measures which created a new felony, expanded the  
          scope or penalty of an existing felony, or otherwise increased  
          the application of a felony in a manner which could exacerbate  
          the prison overcrowding crisis.  Under these principles, ROCA  
          was applied as a content-neutral, provisional measure necessary  
          to ensure that the Legislature did not erode progress towards  
          reducing prison overcrowding by passing legislation which would  
          increase the prison population.  ROCA necessitated many hard and  
          difficult decisions for the Committee.





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          In January of 2013, just over a year after the enactment of the  
          historic Public Safety Realignment Act of 2011, the State of  
          California filed court documents seeking to vacate or modify the  
          federal court order issued by the Three-Judge Court three years  
          earlier to reduce the state's prison population to 137.5 percent  
          of design capacity.  The State submitted in part that the, ". .  
          .  population in the State's 33 prisons has been reduced by over  
          24,000 inmates since October 2011 when public safety realignment  
          went into effect, by more than 36,000 inmates compared to the  
          2008 population . . . , and by nearly 42,000 inmates since 2006  
          . . . ."  Plaintiffs, who opposed the state's motion, argue in  
          part that, "California prisons, which currently average 150% of  
          capacity, and reach as high as 185% of capacity at one prison,  
          continue to deliver health care that is constitutionally  
          deficient."  In an order dated January 29, 2013, the federal  
          court granted the state a six-month extension to achieve the  
          137.5 % prisoner population cap by December 31st of this year.  

          In an order dated April 11, 2013, the Three-Judge Court denied  
          the state's motions, and ordered the state of California to  
          "immediately take all steps necessary to comply with this  
          Court's . . . Order . . . requiring defendants to reduce overall  
          prison population to 137.5% design capacity by December 31,  
          2013."         

          The ongoing litigation indicates that prison capacity and  
          related issues concerning conditions of confinement remain  
          unresolved.  However, in light of the real gains in reducing the  
          prison population that have been made, although even greater  
          reductions are required by the court, the Committee will review  
          each ROCA bill with more flexible consideration.  The following  
          questions will inform this consideration:

                 whether a measure erodes realignment;
                 whether a measure addresses a crime which is directly  
               dangerous to the physical safety of others for which there  
               is no other reasonably appropriate sanction; 
                 whether a bill corrects a constitutional infirmity or  




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               legislative drafting error; 
                 whether a measure proposes penalties which are  
               proportionate, and cannot be achieved through any other  
               reasonably appropriate remedy; and
                 whether a bill addresses a major area of public safety  
               or criminal activity for which there is no other  
               reasonable, appropriate remedy.





                                      COMMENTS

          1.  Need for the bill  

          According to the author:

               There currently is a lack of communication between  
               state and local agencies as it relates to the medical  
               parole of prisoners.  Current law only requires that a  
               medical parole notification be provided to the county  
               where the inmate was convicted and not to the counties  
               to which those inmates will be paroled.  Because San  
               Diego County has highly specialized skilled nursing  
               home facilities that some prisoners require, some  
               prisoners have been medically paroled without any  
               notice to County officials.  This legislation attempts  
               to close that communication gap.

               In the spring of 2011, the San Diego County District  
                                                     Attorney's office successfully argued against the  
               release of an inmate convicted of kidnapping, beating  
               and raping a woman in San Diego in 1998.  Despite the  
               fact that the inmate was a quadriplegic, he verbally  
               abused and threatened the medical staff at the prison  
               and was capable of verbally ordering crimes be  
               committed.





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               In late 2011, an inmate medically paroled to San Diego  
               made indecent gestures to female nurses in the skilled  
               nursing facility providing his care. Before these  
               inmates have the opportunity to commit additional  
               crimes, the County of 
               San Diego would like the chance to review the  
               information on these individuals and weigh in on their  
               release before they return to our community.

          2.  Background on Medical Parole  

          SB 1399 (Leno) (Chapter 405, Statutes of 2010) resulted in the  
          enactment of medical parole, which became operative in January  
          of 2011.  (Penal Code  3550.)  The law provides that medical  
          parole shall be granted where (1) an inmate has been found by  
          the head physician in the institute where they are housed to be  
          permanently medically incapacitated with a medical condition  
          that renders him or her permanently unable to perform activities  
          of basic daily living, and results in the prisoner requiring  
          24-hour care and (2) the Board of Parole Hearings also makes a  
          determination that the conditions under which the prisoner would  
          be released would not reasonably pose a threat to public safety.  
           According to the Receiver's office, there have been 51 inmates  
          granted medical parole since its inception in 2011.  

          3)  The Role of CDCR in Parole  

           CDCR has "exclusive jurisdiction and full discretion to  
          determine a parolee's placement."  (Penal Code Section 3003;  
           City of Susanville v. Department of Corrections and  
          Rehabilitation (2012) 204 Cal.App.4th 377, 382 (138 Cal. Rptr.  
          3d 721);  In re Roberts  (2005) 36 Cal.4th 575, 588 (31 Cal. Rptr.  
          3d 458, 115 P.3d 1121);  People v. Stevens  (2001) 89 Cal.App.4th  
          585, 588 (107 Cal. Rptr. 2d 305).)  Penal Code Section 3003  
          provides that, whenever possible, an inmate who is released on  
          parole shall be returned to the county that was the last  
          residence of the inmate prior to his or her incarceration.  If  
          CDCR determines that the inmate cannot be returned to the county  
          of his or her last residence, CDCR may return the inmate to  




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          another county, if that would be in the best interests of the  
          public.  Although CDCR has the discretion to decide where to  
          return the inmate, Penal Code Section 3003 provides the  
          following factors that CDCR must consider when making this  
          decision:






































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                 the need to protect the life or safety of a victim, the  
               parolee, a witness, or any other person;
                 public concern that would reduce the chance that the  
               inmate's parole would be successfully completed; 
                 the verified existence of a work offer, or an  
               educational or vocational training program; 
                 the existence of family in another county with whom the  
               inmate has maintained strong ties and whose support would  
               increase the chance that the inmate's parole would be  
               successfully completed; and 
                 the lack of necessary outpatient treatment programs for  
               parolees receiving treatment.  Penal Code Section 3003 also  
               specifies that the greatest weight shall be given to the  
               protection of the victim and the safety of the community.

          In a recent case, a city and county filed a petition for a writ  
          of mandamus to change the placement of a parolee in their  
          county.  CDCR first attempted to place the inmate in the county  
          of his last residence but because of statutory restrictions on a  
          parolee's placement near a witness or victim, CDCR looked at  
          other counties, including his sister's residence, and finally  
          decided on the plaintiff county.  In ruling that neither the  
          city, the county, nor the trial court could interfere with  
          CDCR's exclusive discretion to determine a parole placement  
          according to the statutory criteria and notice requirements set  
          forth in the Penal Code, the court reasoned that "[u]ndoubtedly,  
          counties throughout the state would object to the placement of a  
          parolee in their jurisdictions.  But the Department has the  
          unwelcome task of choosing one of those communities, and absent  
          an abuse of discretion, the Department's decision must stand."   
          (City of Susanville v. Department of Corrections and  
          Rehabilitation, supra, 204 Cal.App.4th at p. 386.)  

          Under current law, CDCR is required to provide notification to  
          specified parties of parole hearings, pending release of  
          inmates, and release of inmates.  Victims or victim next-of-kin  
          who are registered to receive notification will receive  
          information regarding the date and location of the hearing, and  
          have the right to attend and participate in the medical parole  




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          hearing.  In the case of parole for an inmate serving a life  
          sentence, CDCR must provide notice to the judge of the superior  
          court before whom the prisoner was tried and convicted, the  
          attorney who represented the defendant at trial, the district  
          attorney of the county in which the offense was committed, the  
          law enforcement agency that investigated the case, and where the  
          prisoner was convicted of the murder of a peace officer, the law  
          enforcement agency which had employed that peace officer at the  
          time of the murder.  (Penal Code  3042(a).)  Generally, when an  
          inmate is paroled, CDCR must provide certain information to  
          local law enforcement agencies regarding a paroled inmate or an  
          inmate placed on postrelease supervision who is released in  
          their jurisdictions.  (Penal Code  3003(e)(1).)  When an inmate  
          serving a sentence for a violent felony conviction is being  
          paroled, CDCR must notify the sheriff or chief of police, or  
          both, and the district attorney, who has jurisdiction over the  
          community in which the person was convicted and, in addition,  
          the sheriff or chief of police, or both, and the district  
          attorney, having jurisdiction over the community in which the  
          person is scheduled to be released on parole.  The notification  
          must be made by mail at least 60 days prior to the scheduled  
          release, or as soon as practicable.  (Penal Code   
          3058.6(a)-(b).)  

          Existing law also provides that "whenever any sheriff or chief  
          of police is notified of the pending release of a convicted  
          violent felon, that sheriff or chief of police may notify any  
          person designated by the sheriff or chief of police as an  
          appropriate recipient of this notice."  (Penal Code   
          3058.7(a).)  

          The Board of Parole Hearings applies the above-stated  
          notification requirements to all parole hearings including  
          medical parole hearings.

          This bill would require that, notwithstanding any other  
          provision of law, CDCR give notice to the county of commitment  
          as well as the county of proposed release, if that is different  
          than the county of commitment, of any medical parole hearing and  



                                                                           







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          of any decision to grant medical parole.  That notice would be  
          required to be made at least 30 days prior to the time any  
          medical parole hearing or medical parole release is scheduled  
          for an inmate receiving medical parole consideration, regardless  
          of whether the inmate is sentenced either determinately or  
          indeterminately.


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