2/4/2009 1:59:19 AM
HOFSTRA LABOR & EMPLOYMENT LAW JOURNAL
The Possibility of Preemption of Damages under Timothy’s Law
State Senate prior to the legislation’s passing. Timothy’s Law had been passed by the New York State Assembly four years in a row while the Senate ignored the bill.232 In the 2006 legislative session, the Senate agreed to pass the bill with some alterations.233 The inclusion of “substance abuse” in the list of mental disabilities and illnesses covered
alteration, dependency on drugs and alcohol was not Timothy’s Law, and insurance companies may continue to against these illnesses with regard to insurance coverage.
included in discriminate
The exclusion of substance abuse from the protected class of mental illnesses and disabilities in Timothy’s Law has the potential to create problems for individuals who receive their insurance coverage through employee benefit plans. Drawing a parallel analysis to what happened in the Spain case, if an insurance company first approves, then denies coverage for an illness they claim to be substance abuse, but which actually is the effect of a mental illness or disability, an insured may be barred from recovering damages under state law.
To examine the problem, individual in New York has been
consider a hypothetical case: an
with a mental illness
necessitated by Timothy’s Law. The individual then proceeds treatment through antipsychotic or neuroleptic medications.235
to receive However,
coexisting substance abuse problems as may increase the risk of mental relapses. 236 a
To cleanse the body of addiction, the individual might have to
232. Timothy’s Law, http://www.timothyslaw.org/event_review.php?ID=7 (last visited July 11, 2008).
233. Shelly Nortz, Agreement Reached on Timothy’s Law, NAMI-NYS NEWS, 2006, available at http://www.naminys.org/timeagereement.html. In New York, the same versions of a bill with exact language must be passed in both the Senate and Assembly before it can be forwarded to the Governor to be signed. New York State Senate, About the Senate: How a Bill Becomes a Law in
New York State , [hereinafter How a Bill Becomes a Law] (last visited July 16, 2008). h t t p : / / w w w . s e n a t e . s t a t e . n y . u s / s w s / a b o u t s e n a t e / h o w _
How a Bill Becomes a Law; see also Timothy’s Law, supra note 1.
http://www.nlm.nih.gov/medlineplus/ency/article/000928.htm (last updated Feb. 26, 2008) (stating that these types of drugs often are the standard method of treatment for schizophrenia). 236. Id.