Katherine F. Cooke, DAB, CR6925, (2026)

DECISION

Petitioner, Katherine F. Cooke, is a licensed clinical social worker, practicing in New York, who opted out of the Medicare program with a letter dated September 29, 2025.  Petitioner requested an opt-out date effective January 1, 2026.  However, because the letter opt-out affidavit was dated September 29, 2025, the Centers for Medicare & Medicaid Services (CMS) denied her request.  Petitioner appeals that determination. 

Because Petitioner submitted an affidavit meeting the requirements of 42 C.F.R. § 405.420 dated September 29, 2025, CMS properly denied Petitioner’s request for a January 1, 2026 opt-out date and correctly established September 29, 2025 as the effective date.  42 C.F.R. § 405.410. 

Background

In an affidavit, dated September 29, 2025, and submitted to the Medicare administrative contractor, National Government Services (NGS), Petitioner opted out of the Medicare program.  CMS Exs. 2.  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 was 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.  Id. at 1-2.  The affidavit requested an

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effective date of January 1, 2026.  Id.  By letter dated October 28, 2025, NGS informed Petitioner that the effective date of her opt-out status was September 29, 2025, and informed Petitioner that her opt-out status was effective for two years and would automatically renew at the end of the initial two-year period.  CMS Ex. 4. 

On November 6, 2025, Petitioner requested reconsideration of the effective date of her opt-out approval.  CMS Ex. 5.  Petitioner explained that she was unaware that the effective date of the opt out would be the date of her signed affidavit.  Id. 

In a reconsidered determination, dated January 20, 2026, the contractor hearing officer determined that, because Petitioner signed her opt-out affidavit on September 29, 2025, the effective date was correctly established as September 29, 2025.  CMS Ex. 1 at 3. 

Petitioner appealed, and the matter was docketed before me.  The Civil Remedies Division issued a standing prehearing order (Standing Order) on March 19, 2026.  Consistent with that order, CMS filed a motion for summary judgment and brief (CMS Br.) with five exhibits (CMS Exs. 1-5).  CMS refiled its exhibits along with two additional exhibits with its reply brief.  In the absence of any objections, I admit into evidence CMS Exs. 1-7. 

Petitioner submitted her response brief (P. Br.) with no exhibits. 

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 Standing Order at 5-7.  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) (citing cases). 

Issue

Whether CMS properly determined the effective date of Petitioner’s opt-out affidavit. 

Jurisdiction

I have jurisdiction to hear and decide this case.  42 C.F.R. §§ 405.450(a), 498.3(b)(19). 

Discussion

1.  Because Petitioner’s opt-out affidavit was signed on September 29, 2025, the effective date of her opt-out is September 29, 2025.  42 C.F.R. § 405.410.1 

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A physician or other practitioner may participate in the Medicare program as a supplier of services.  Social Security Act (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.  42 C.F.R. § 405.405(a).  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(e), 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 September 29, 2025.  42 C.F.R. § 405.400. 

The effective date of the initial opt-out is as follows: 

The initial 2-year opt-out period begins the date the affidavit meeting the requirements of § 405.420 is signed, provided the affidavit is filed within 10 days after he or she signs his or her first private contract with a Medicare beneficiary. 

42 C.F.R. § 405.410(c). 

Petitioner does not contest that she signed the original opt-out affidavit on September 29, 2025.  As a result, the reconsidered determination, supported by the regulations, confirms that the effective date of Petitioner’s opt-out affidavit is September 29, 2025. 

Petitioner argues that CMS was aware she requested a later effective date and that she did not enter into any private contract with Medicare beneficiaries until January 1, 2026.  Petitioner explains that because she did not enter into any contracts until after January 1, 2026, the regulation states that the effective date of her opt-out could not be until 10 days from the date she executed her first contract.  She further asserts that she did not know that she had to date her affidavit with the requested effective date. 

First, Petitioner was obligated to familiarize herself with the Medicare rules.  The regulation clearly states that the opt-out affidavit is effective on the date it is signed.  And Petitioner’s arguments that she did not accept or enter into private contracts with Medicare beneficiaries until her requested effective date of January 1, 2026 are without merit.  The language of the regulation does not support Petitioner’s position.  The 10-day rule Petitioner refers to applies when a private contract with a Medicare beneficiary was

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signed prior to the submission of the opt-out affidavit.  Here, Petitioner admits that she did not enter into private contracts prior to the date she signed her opt-out affidavit. 

In the event Petitioner is requesting equitable relief, I am not authorized to disregard the statute and regulations in order to provide Petitioner with the 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 signed her opt-out affidavit on September 29, 2025, September 29, 2025 is the effective date of her opt-out.  I therefore affirm CMS’s determination.