Renee Michelle Lee, DAB CR6605 (2025)

DECISION

Petitioner, Renee Michelle Lee, is a marriage and family therapist, practicing in California, who opted out of the Medicare program.  She now seeks to end her opt-out status.  However, because she missed the deadline for terminating her opt-out status, the 
Centers for Medicare & Medicaid Services (CMS) denied her request.  Petitioner appeals that determination.  

Because she missed the regulatory deadline, CMS properly denied Petitioner’s request to terminate her Medicare opt-out status.  42 C.F.R. § 405.445(b)(2).  

Background

In an affidavit, dated January 12, 2024, and submitted to the Medicare contractor, Noridian Healthcare Solutions, Petitioner opted out of the Medicare program.  Among other assurances, she agreed that, during the opt-out period, she would not submit a claim to Medicare for any service furnished to a Medicare beneficiary.  She recognized that the opt-out is for a period of two years and would automatically renew unless cancelled.  She also acknowledged that, to cancel the automatic extension, she had to notify the Medicare contractor in writing at least 30 days prior to the start of the next opt-out period.  CMS Ex. 1 at 2.  

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In a letter dated February 28, 2024, the Medicare contractor advised Petitioner that it approved her opt-out affidavit, effective January 12, 2024.  The letter included specific instructions if she changed her mind about opting-out:  

Since you are opting out for the first time, you have a one-time, 90 day period to change your mind about opting out.  If you decide to terminate during this 90 day period, you must submit your request, in writing and signed, no later than April 11, 2024.  After this 90 day period ends, you can only cancel the opt-out at the end of a 2 year opt-out period.  

CMS Ex. 2 at 1 (emphasis added).  

In a reconsideration request, dated April 19, 2024, Petitioner requested termination of her opt-out from Medicare.  CMS Ex. 3.  

In a reconsidered determination, dated August 5, 2024, the contractor hearing officer determined that, because Petitioner did not meet the deadline for cancelling her Medicare opt-out status, she would remain opted-out until at least January 11, 2026.  CMS Ex. 5 at 3.  

Petitioner appealed, and the matter is now before me.  

Decision on the written record.  CMS has moved for summary judgment.  However, because neither party proposes any witnesses, an in-person hearing would serve no purpose.  See Acknowledgment and Prehearing Order at 4, 5, 6 (¶¶ 4(c)(iv), 8, 10) (August 15, 2024).  I may therefore decide this case based on the written record, without considering whether the standards for summary judgment are satisfied.  See Anil Hanuman, D.O., DAB No. 3080 at 12 (2022).  

CMS submits its motion and brief (CMS Br.) with six exhibits (CMS Exs. 1-6).  In the absence of any objections, I admit into evidence CMS Exs. 1-6.  See Acknowledgment at 5 (¶ 7).  

Petitioner submitted no additional arguments or documents but indicated that she rests on her August 13, 2024 submissions (hearing request with accompanying documents).  

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Discussion

1.    Because her request to terminate was untimely, CMS properly denied Petitioner early termination of her opt-out status.  42 C.F.R. § 405.445(b).  1

A physician or other practitioner may participate in the Medicare program as a supplier of services.  Social Security Act § 1861(d); 42 C.F.R. § 498.2.  A practitioner may also enter into one or more private contracts with Medicare beneficiaries “for the purpose of furnishing items or services that would otherwise be covered by Medicare” if certain conditions are met.  Among those conditions, the practitioner must submit one or more affidavits opting out of the Medicare program.  42 C.F.R. § 405.405; see Act § 1802(b)(3).  

If a practitioner opts out, Medicare will not pay for the services she provides to beneficiaries (except in emergency or urgent care circumstances).  42 C.F.R. §§ 405.405, 405.440.  To opt out, the practitioner must sign an affidavit declaring that, during the two-year opt-out period, the practitioner will provide services to Medicare beneficiaries only through private contracts and will not submit claims for payment to Medicare or allow any entity to submit a Medicare claim on her behalf.  42 C.F.R. § 405.420.  The opt-out period is for two years, beginning on the effective date of the affidavit, in this case January 12, 2024.  42 C.F.R. § 405.400.  

A practitioner may terminate her opt-out status early if:  

• 1)    She has not previously opted out of Medicare;
• 2)    No later than 90 days after the effective date of the opt-out period, she notifies all Medicare contractors, with which she filed an affidavit, of the termination of the opt-out;
• 3)    She refunds to each beneficiary, with whom she privately contracted, all payment collected in excess of the deductible and coinsurance; and
• 4)    She notifies all beneficiaries of her decision to terminate her opt-out and of the beneficiaries’ right to have Medicare claims filed on their behalf for services furnished during the period between the effective date of the opt-out and the effective date of the termination of the opt-out.  

42 C.F.R. § 405.445(b).  

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Petitioner concedes that she signed the opt-out affidavit on January 12, 2024, and did not ask to terminate her opt-out status until more than 90 days later — on April 19, 2024.  She thus did not meet the requirements of section 405.445(b) and is bound by the terms of her opt-out affidavit.  Nothing in the statute or regulations justifies early termination of her opt-out status.  

Petitioner nevertheless complains that, because she did not understand the ramifications of opting out, not allowing her to terminate is unfair.  I don’t find this unfair.  Petitioner was obligated to familiarize herself with the Medicare rules.  Not only are the relevant rules straight-forward, the Medicare contractor here gave Petitioner explicit instructions as to the opt-out rules when it accepted her affidavit.  In any event, I am not authorized to disregard the statute and regulations in order to provide Petitioner with the equitable relief that she seeks.  See Parvin Shafa MD, Inc., DAB No. 2846 at 8 (2018); Thomas Macari, D.O., DAB CR3155 at 4 (2014).  

Conclusion

Because Petitioner did not ask to terminate her opt-out status within 90 days after the effective date of the opt-out period, CMS properly denied her request for early termination.  I therefore affirm CMS’s determination.