Social Security Disability &
  Special Needs Planning News from
 Sheri R. Abrams, Attorney at Law,
 Partner at Needham Mitnick & Pollack, PLC  
In This Issue:
Final Rule to Revise the Definition of Spouse Under FMLA
Can a Third Party Special Needs Trust Pay For a Vacation?
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Source: Reprinted from the March 2015 Newsletter of Sheri R. Abrams, Attorney at Law, Needham Mitnick & Pollack, PLC


Issue: # 80

 March 2015

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Welcome to our monthly newsletter. 


These monthly newsletters are designed to provide useful information on Disability Law & Issues with a special emphasis on Social Security Disability & Supplemental Security Income (SSI) benefits and Special Needs Trusts & Planning.


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Final Rule to Revise the Definition of Spouse Under FMLA

The Family and Medical Leave Act (FMLA) entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons. The FMLA also includes certain military family leave provisions.

The Department of Labor issued a Final Rule on February 25, 2015 revising the regulatory definition of spouse under the Family and Medical Leave Act of 1993 (FMLA).

The Final Rule amends the regulatory definition of spouse under FMLA so that eligible employees in legal same-sex marriages will be able to take FMLA leave to care for their spouse or family member, regardless of where they live.

This will ensure that FMLA will give spouses in same-sex marriages the same ability as all spouses to fully exercise their FMLA rights.

The effective date for the final rule is March 27, 2015.


Major features of the Final Rule are:
  • The Department has moved from a "state of residence" rule (where the employee lives) to a "place of celebration" rule (where the marriage occurred) for the definition of spouse under FMLA regulations.  A place of celebration rule allows all legally married couples, whether opposite-sex or same-sex, or married under common law, to have consistent federal family leave rights regardless of where they live; and
  • The Final Rule's definition of spouse expressly includes individuals in lawfully recognized same-sex and common law marriages and marriages that were validly entered into outside of the United States if they could have been entered into in at least one state.



Can a Third Party Special Needs Trust Pay For a Vacation?


In general a Third Party Special Needs Trust can pay for a vacation.  Different rules apply to First Party Special Needs Trusts.


This article applies only to Third Party Special Needs Trusts, which are trusts that are funded by money that does not belong to the disabled person.


Using Third Party Special Needs trust money to pay for a vacation has been known to cause problems since a vacation normally includes elements of both food and shelter.  The fear is that food and shelter could be considered in-kind support and maintenance (ISM), which would reduce the trust beneficiary's SSI benefit.


However, even though a cruise ship cabin, hotel, or other vacation housing option, is technically considered "shelter", an ISM penalty is not imposed during a temporary absence from the beneficiary's primary residence.


Food, however, could still be a problem, that is why a cruise or other all-inclusive vacation is so great, since food is included with the "shelter" so there is no ISM penalty imposed by Social Security.


It is often difficult for a disabled person to travel alone.  Normally if the disabled person who is the beneficiary of a Third Party Special Needs Trust requires assistance, a trustee can pay for one individual to accompany the beneficiary on the vacation.  More than one caregiver can also be paid for as long as there is documentation that the disabled person needs such assistance.


It is important to make payments from the Third Party Special Needs Trust for a vacation very transparent.   That is why it is better to have the trustee of a Third Party Special Needs Trust pay vacation expenses directly to the vacation provider.  Any incidental expenses can be paid by a co-traveler who will then be reimbursed from the Third Party Special Needs Trust.  The trustee should require receipts for all purchases.


One ideal way to use Third Party Special Needs Trust money is to pay for a vacation through an organization that offers vacations specifically designed for the disabled.  One such group that I have worked with and have seen in person work their magic is "Autism on the Seas."


"Autism on the Seas" is the Leading Developmental Disability Service Supplier to the Cruise Industry.   They provide cruise vacation services to accommodate adults and families living with children with Special Needs, including, but not limited to, Autism, Asperger Syndrome, Down Syndrome, Tourette Syndrome, Cerebral Palsy and all Cognitive, Intellectual and Developmental Disabilities.


"Autism on the Seas" provides cruises with their professional Staff (educated, experienced, background checked and sanctioned by the cruise lines) to assist adults and families in accommodating the typical cruise services, as well as providing specialized Respite and Private Activities/Sessions that allow their guests the use of the ships entertainment venues in an accommodated and assisted manner.


For more information contact:


"Autism on the Seas" 



Sheri Abrams' Book "Don't Gamble With Your Social Security Disability Benefits--What Every Virginia Resident Needs To Know To Win A Social Security Disability Case" Is Available

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"Don't Gamble With Your Social Security Disability Benefits--What Every Virginia Resident Needs To Know To Win A Social Security Disability Case" is now available for the Nook here,


and the Kindle here.




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We provide legal services in the areas of Social Security Disability Law, Elder Law, Wills and Trusts, Probate, Trust Administration, Powers of Attorney, Advance Medical Directives, Guardianships, Long Term Care Planning, Disability Planning, Medicaid Eligibility, Student Loan Discharge, Veterans Benefits and Special Needs Trusts.
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