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BUSCHING-KAPOCHUNAS FINAL

2/4/2009 1:59:19 AM

602

HOFSTRA LABOR & EMPLOYMENT LAW JOURNAL

[Vol. 25:601

on New York citizens, employers, and insurance companies.

Part III of this Note explores past and present federal mental health parity legislation: the Mental Health Parity Act of 1996, the (many) Mental Health Equitable Treatment Acts, and the Mental Health Parity Act of 2007. These pieces of legislation amount to an insufficient effort to rectify the disparity between mental and physical health care coverage.

In light of the inadequacies of federal legislation, many States have passed their own parity laws. Part IV discusses a sample of these laws as compared to Timothy’s Law.

Part V summarizes the preemption clause of the Employee Retirement Income Security Act (“ERISA”) and its interplay with parity laws. ERISA preemption of State parity laws, damages for withholding benefits, and damages for medical malpractice are discussed in turn.

The final section of this note, Part VI, considers the progressive nature of State parity laws and their potential influence on federal policymaking. The possible benefits of future federal mental health parity laws are postulated and analyzed with respect to the circular problem of preemption.

PART I

Timothy’s Story

Timothy O’Clair was born May 5th, 1988.1 By the time Timothy was seven years old, he began to display a severe temper and violent tendencies.2 The O’Clair family soon recognized that Timothy needed psychological help.3 For four years they worked with both a psychiatrist in Saratoga County, New York and a psychological group in Albany County, New York, in an effort to get Timothy the mental healthcare he

needed.4

However, his father’s health insurance, offered through his

employment with the New York State Thruway Authority, provided only meager coverage for mental health visits. 5

1. 2008). 2. 3. 4. 5. CDPHP

Timothy’s Law, http://www.timothyslaw.org/timothys_story.htm (last visited July 11,

See id. Id. Id. See id. The insurance coverage, through New York based insurance companies MVP and , only permitted a combined total of 20 outpatient visits per year for psychiatrist and

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