IN THE DISTRICT COURT OF APPEAL OF THE STATE O F FLORIDA FIFTH DISTRICT NOT FINAL UNTIL TIME E XPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED
M ILD RE D V. WASKIEWICZ, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF M.V.K. , A ppellant ,
v. Case No. 5D 2 1

- 29 49 LT Case No s

. 165 830 93 08 21F

- 02302

DEPARTMEN T OF CHILDREN AND F AM I LIES ,

Appellee

. ______________________________/ Opinion filed May 19 , 2 023 Administrative Appeal from the Department of Chil d re n and Families Office of Appeal Hearings

. Jeffrey W. Gibson and Zoila Lahera, of Macfarlane , Ferguson & McMullen, Tampa, and Jack M . Rosenkranz, of Rosenkranz Law Firm, Ta mp a, for Appellant. Jennifer L. Ware, Assi stant Regional Counsel, of Department of Children and Families , D eland, for A ppellee. SOUD, J

.2 Appellant Mildred V. Waskiewicz , as personal representative of her mother M.V.K ’s estate , seeks review of the Department of Children and Families’ deni al of her administrative appeal of DCF’s action denying her mother’s application for Institutional Care Program (ICP) Medicaid benefits for the period from January to April , 2021. We have jurisdiction. See Art. V, § 4(b)(2), Fla. Const.; Fla. R. App. P. 9.030(b)(1)(C); § 120.68(2)(a), Fla. Stat. (2021). At the heart of this appeal is Appellant ’s claim that DCF wrongly
determined $32,908 in her mother’s “VA fiduciary account” 1 was an available asset for the purpose of her mother’s application for ICP benefits . Appellant argues that these funds , $30,000 of which were transferred from M.V.K. ’ s personal checking account into the VA fiduciary account, were being held in the VA fiduciary account for anticipate d repayment to the Department of Veteran Affairs (VA) for the VA’s erroneous overpayment of benefits for
which M.V.K. was otherwise eligible. In light of this calculation, DCF concluded M.V.K. was not eligible for ICP benefits for January to April , 2021.

1 M.V.K.’s VA benefits would be deposited each month directly into the VA fiduciary account. M.V.K.’s monthly income from social security and the Florida Retirement System also flowed from her checking account into this VA fiduciary account. The expenses as sociated with M.V.K.’s living at the Lexington Place Assisted Living Facility were paid directly from the VA fiduciary account.3 The parties do not dispute that Appellant, on behalf of her mother, owed the VA for overpayment (which was re paid in full from the VA fiduciary
account on May 11, 2021 ). 2 Of critical importance, there were no legal restrictions placed on the VA fiduciary account. Further, the record before us does not reveal any effort by the VA to exert control over the funds in the VA fiduciary account, and the VA described the overpayment as a debt and provided an array of options for payment from various sources, including payment over time

. As a result, DCF determined these funds were available for M.V.K.’s support and maintenance prior to May 2021 and that Appellant could have legally repaid the VA from any source . S ince she was not legally prohibited from using the funds in the VA acco u nt for assisted living facility expenses, DCF simply viewed th e VA debt as any other bill that would be due and owing. Though Appellant’s reserv ation of the funds to repay the VA , as her mother’s fiduciary, was proper (and even commendable ) , we must conclude under Florida law that DCF correctly determined the money at issue was

2 Similarly, the parties do not dispute that the funds in the VA fiduciary account were the reason the application for ICP bene fits was denied for the months at issue.4 available to Appellant’s mother , in the absence of any legal restriction on the use of those funds. 3
Once the individual ’ s ownership interest of an asset(s) is established, the availability of that asset must be determined. Asset(s) determined not to be available are not considered in determining eligibility. Assets are considered available to an individual when the individual has unrestricted access to it. Accessibility depends on the legal structure of the account or property. An asset is countable, if the asset is available to a repr esentative possessing the legal ability to make the asset available for another ’ s support or maintenance, even though the representative chooses not to do so. Assets not available due to legal restrictions are not considered in determining total available assets unless the legal restrictions were caused or requested by the individual or another acting at their request or on their behalf.
F la. Admin. Code. R . 65A

- 1.303 (emphasis added). As such, DCF correctly denied he r application for ICP benefits for the months at issue

. See Kirk v. Dep’t of Child. & Fam. Servs. , 737 So. 2d 561 , 562 (Fla. 4th DCA 1999) ( rejecting argument that DCF should have considered certain debts appellant owed when deciding eligib il ity for ICP benefits ).
AFFIRMED. It is so o rdered.

3 Cf. Mason v. Dep’t of HRS , 614 So. 2d 1168 (Fla. 5th DCA 1993) (holding that settlement proceeds held in trust for the use and benefit of the injured minor child were not legally available asset s for purposes of eligibility for the “Aid to Families With Dependent Children” assistance program).5 W ALL I S and H A RRIS , JJ., concur.