IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO

FILE MOTION FOR REHEARING AND

DISPOSITION THEREOF IF FILED

MILDRED V. WASKIEWICZ, AS 

PERSONAL REPRESENTATIVE 

OF THE ESTATE OF M.V.K., 

Appellant, 

v. Case No. 5D21-2949

LT Case Nos. 1658309308 

21F-02302

DEPARTMENT OF CHILDREN

AND FAMILIES, 

Appellee. 

______________________________/

Opinion filed May 19, 2023

Administrative Appeal from the 

Department of Children 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, Tampa, for 

Appellant.

Jennifer L. Ware, Assistant Regional 

Counsel, of Department of Children 

and Families, Deland, for Appellee. 

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’ denial 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 anticipated 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 associated 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 repaid 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. Since she was not legally prohibited

from using the funds in the VA account for assisted living facility expenses, 

DCF simply viewed the VA debt as any other bill that would be due and 

owing.

Though Appellant’s reservation 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 benefits 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 representative 

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.

Fla. Admin. Code. R. 65A-1.303 (emphasis added). As such, DCF correctly 

denied her 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 eligibility for ICP benefits). 

AFFIRMED.

It is so ordered.

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 assets for purposes of eligibility 

for the “Aid to Families With Dependent Children” assistance program).
5

WALLIS and HARRIS, JJ., concur.