Terrence A. Cronin, MD, FACD CHO, DAB No. 3225 (2026)

FINAL DECISION ON REVIEW OF ADMINISTRATIVE LAW JUDGE DISMISSAL

Terrence A. Cronin, M.D., FACD CHO (Petitioner) requests review of an Administrative Law Judge (ALJ)’s June 16, 2025 dismissal of Petitioner’s request for a hearing.  Terrence A. Cronin, M.D., FACD, CHO, Docket No. C-25-476 (Dismissal).  After Petitioner failed to file a timely prehearing exchange and respond to a show cause order, the ALJ dismissed the case for abandonment.  Dismissal at 1-2.  We affirm the Dismissal.  

Legal Background

Under the Social Security Act (Act), the Department of Health and Human Services administers Medicare through the Centers for Medicare & Medicaid Services (CMS) and administrative contractors.  Act §§ 1816, 1842, 1874A.  A health care supplier such as a physician or physician practice group must enroll in Medicare to receive payment for covered items and services furnished to Medicare beneficiaries.  42 C.F.R. §§ 400.202 (defining “Supplier”), 424.500, 424.505.1  To enroll, a supplier must submit the correct, complete application and supporting documentation to the designated Medicare contractor.  Id. § 424.510(a)(1), (d)(1).  Periodically an enrolled supplier must revalidate its enrollment information, within 60 days of notification by CMS or a contractor, by submitting the required application and supporting documentation.  Id. §§ 424.515, 424.516.  If a supplier “does not furnish complete and accurate information and all supporting documentation within 90 calendar days of receipt of notification,” CMS may “deactivate” the supplier’s billing privileges, meaning they “were stopped, but can be restored upon the submission of updated information.”  Id. §§ 424.502, 424.540(a)(3).  To reactivate, the supplier must recertify the correctness of its enrollment information, furnish any missing information, and submit a complete reactivation application if CMS requires one.  Id. § 424.540(b)(1)-(2).  “No payment may be made for otherwise Medicare covered items or services furnished to a Medicare beneficiary” during the deactivation period.  Id. § 424.555(b).

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CMS’s determination of the effective date of billing privileges is one of the specified “initial determinations” that a supplier may appeal under 42 C.F.R. Part 498.  42 C.F.R. § 498.3(a)(1), (b)(15).  A dissatisfied supplier may ask CMS to reconsider the effective date, and if still dissatisfied may request a hearing before an ALJ of the Departmental Appeals Board, Civil Remedies Division.  Id. § 498.5(l)(1)-(2).  An ALJ may dismiss a supplier’s hearing request due to abandonment:

(a) The ALJ may dismiss a request for hearing if it is abandoned by the party that requested it.

(b) The ALJ may consider a request for hearing to be abandoned if the party or its representative—

(1) Fails to appear at the prehearing conference or hearing without having previously shown good cause for not appearing; and

(2) Fails to respond, within 10 days after the ALJ sends a “show cause” notice, with a showing of good cause.

42 C.F.R. § 498.69.  A party may appeal such a dismissal to the Appellate Division of the Departmental Appeals Board (Board).  Id. §§ 498.5(l)(3), 498.80.  A dismissal “is binding” unless the ALJ or Board vacates it.  42 C.F.R. § 498.71(b). 

Case Background

Petitioner, a group medical practice in Florida, enrolled with Medicare in 2010.  CMS Ex. 10, at 1-2.  Megan M. Cronin, M.D. (Dr. Cronin) is on record as Petitioner’s authorized official, managing employee, and director since 2023.  Id. at 6-7.

In 2024, a CMS contractor notified Petitioner to revalidate its enrollment record.  A January 31, 2024 letter told Petitioner to “update or confirm all the information in [Petitioner’s] record” by April 30, 2024.  CMS Ex. 1, at 1.  A May 24, 2024 letter declared a hold on all payments of Petitioner’s Medicare claims because Petitioner had not revalidated its record, and again directed Petitioner “to update or confirm” all of its information.  CMS Ex. 2, at 1.  An August 12, 2024 letter deactivated Petitioner’s billing privileges because Petitioner had not revalidated its enrollment record as requested.  CMS Ex. 3, at 1.  Petitioner then submitted a revalidation enrollment application form; the contractor received it on September 9, 2024, acknowledged receipt, and requested certain supplementation.  CMS Ex. 4, at 2, 56; CMS Ex. 5, at 1-2.  Petitioner responded.  CMS Ex. 6.  

By initial determination dated November 14, 2024, the contractor informed Petitioner that its Medicare reactivation enrollment application was approved but Petitioner would “have a gap in billing privileges from AUGUST 12, 2024 through SEPTEMBER 08, 2024 for failing to fully revalidate” previously.  CMS Ex. 7, at 1.  (The deactivation period spanned from Petitioner’s deactivation date until Petitioner’s “date of filing of a

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Medicare enrollment application that was subsequently approved by a Medicare contractor,” see 42 C.F.R. § 424.520(d)(1)(i).)  Petitioner “would not be reimbursed for services provided to Medicare beneficiaries during this time period.”  CMS Ex. 7, at 1. 

Petitioner requested reconsideration based on circumstances including alleged non-receipt of the initial revalidation request in January 2024.  CMS Ex. 8, at 23.  On January 22, 2025, the contractor issued an unfavorable reconsidered determination.  CMS Ex. 9.

ALJ Proceedings and Dismissal

On March 21, 2025, Petitioner electronically filed a request for “a reconsideration of the gap in billing privileges” based on “extenuating circumstances.”  Request for Hearing (RFH) at 1.  The Civil Remedies Division confirmed receipt.  Acknowledgment of Receipt of RFH on March 21, 2025 (Acknowledgment Letter).  The Acknowledgment Letter stated the deadline for each party to file its prehearing exchange of briefing, proposed exhibits, and proposed witness identification and testimony:  CMS’s exchange was due by April 28, 2025, and Petitioner’s was due by June 2, 2025.  Id. 

The ALJ issued a Standing Prehearing Order (Standing Order) explaining “the procedures that parties must follow to present evidence and arguments” and notified the parties that the Civil Remedies Division Procedures (CRDP) “apply to this case.”  Standing Order at 1.  The CRDP state the parties’ duties concerning electronic filing:

Electronic service of documents.  Parties using DAB E-File must accept electronic service of all case-related documents, including those from opposing parties as well as the ALJ.  DAB E-File will automatically e-mail the parties a notification when a document or group of documents has been uploaded in the case.  The notification will include a link to access the newly uploaded documents.  Parties are responsible for ensuring that automatic e-mail notices from DAB E-File are not blocked by spam or other filters.

CRDP(Civil Remedies Division Docket #2b) at 5-6.  The ALJ advised the parties that “for failing to comply with an order or procedure,” they faced sanctions that could include “dismissal of the action.”  Standing Order at 7. 

CMS timely filed its prehearing exchange, but Petitioner did not, so on June 3, 2025, the ALJ issued a show cause order stating:

Petitioner’s failure to comply with my Standing Order suggests that it has abandoned its hearing request.  A hearing request may be dismissed if a petitioner abandons its request for hearing.  42 C.F.R. § 498.69(a).  A hearing request may be considered abandoned if the party requesting a

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hearing fails to respond within 10 days to a “show cause” notice with a showing of good cause for its failure to meet deadlines.  42 C.F.R. § 498.69(b)(2). 

Accordingly, Petitioner is ordered to show cause why this case should not be dismissed. Petitioner must respond by June 13, 2025, and submit its pre‑hearing exchange and response to CMS’s motion for summary judgment if it still desires a hearing.

If Petitioner fails to comply with this order or fails to show good cause, this case will be dismissed for abandonment.

Order to Show Cause at 1-2. 

Petitioner did not respond to the show cause order.  On June 16, 2025, the ALJ concluded Petitioner had “abandoned its hearing request” and ordered the case dismissed.  Dismissal at 2.  The ALJ informed Petitioner that it could request an order vacating the Dismissal, per 42 C.F.R. § 498.72.  Id.  Petitioner did not make such a request.

Board Proceedings

Petitioner has appealed to the Board by filing a standard form request for review (RR) completed by Dr. Cronin attaching 18 pages of documentation.2   In the form section for specifying “the parts of the ALJ’s decision or dismissal you disagree with and why you think the ALJ was wrong,” Petitioner states “see attached.”  RR at 1.  The attachments are a table of medical claims information, id. at 3-15, and a copy of Civil Remedies Division documents including the Dismissal, id. at 16-20.

In response, CMS argues that the Board should affirm the Dismissal.  Resp. of CMS to RR at 1.  CMS asserts that “Petitioner failed to set forth any dispute of the ALJ’s dismissal, as required by 42 C.F.R. § 498.82(b),” and “[t]he ALJ properly dismissed the appeal as abandoned.”  Id. 

Petitioner, newly represented by legal counsel, has filed a reply brief seeking to “reverse the Dismissal.”  Reply at 1.  Petitioner does not dispute the ALJ’s findings that Petitioner failed to file a prehearing exchange and respond to the show cause order.  Instead, Petitioner explains that those failures occurred because its office manager received notification emails concerning the Acknowledgment Letter, Standing Order, and Order to Show Cause, and forwarded those emails to Dr. Cronin, but “due to an internal

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communication error” those emails were “inadvertently directed to Dr. Cronin’s spam folder.”  Id. at 4-5.  Thus, Petitioner explains, “Dr. Cronin was unaware” of the case filings until the Dismissal alerted Petitioner “for the first time” that the notification emails “were being directed to Dr. Cronin’s spam folder.”  Id.  As support, Petitioner cites its office manager’s written Declaration.  Ex. A to Reply.  Petitioner also newly argues that the Dismissal is deficient because it lacks a necessary “finding that the party’s violation of a court order was due to willfulness, bad faith, or the fault of the party” and the record would not support such a finding.  Id. at 6-9.  Petitioner further contends that:  reversing the Dismissal would cause CMS “no prejudice”; Petitioner had “no history of dilatoriness”; any noncompliance while “Petitioner was not represented by counsel before the ALJ” was “inadvertent”; and “there is no evidence that the ALJ considered the effectiveness of a sanction other than dismissal.”  Id. at 9-11.3

Standard of Review

We review disputed legal issues for whether the ALJ decision is erroneous and disputed factual issues for whether the ALJ decision is supported by substantial evidence on the record as a whole.  Guidelines – Appellate Review of Decisions of Administrative Law Judges Affecting a Provider’s or Supplier’s Enrollment in the Medicare Program (Guidelines), “Completion of the Review Process,” ¶ (c), https://www.hhs.gov/about/ agencies/dab/different-appeals-at-dab/appeals-to-board/guidelines/enrollment/ index.html?language=en.  “The standard of review for an ALJ’s exercise of discretion to dismiss a hearing request where,” as here, “such dismissal is committed by regulation to the discretion of the ALJ is whether the discretion has been abused.”   High Tech Home Health, Inc., DAB No. 2105, at 8 (2007), aff’d, Civ. No. 07-80940 (S.D. Fla. Aug. 15, 2008); accord JP Mishra Cardiology, P.C., DAB No. 2967, at 4 (2019).

Analysis

I. Petitioner’s proposed new evidence is inadmissible on appeal.

We exclude Petitioner’s proposed new evidence (a table of medical claims information, RR at 3-15, and the Declaration of Petitioner’s office manager, Ex. A to Reply).  Petitioner did not present either document to the ALJ and by regulation the Board may not admit such new evidence in a supplier enrollment appeal like this one.  See 42 C.F.R. § 498.86(a) (“Except for provider or supplier enrollment appeals, the Board may admit evidence into the record in addition to” the evidence that was before an ALJ) (emphasis added); Gregory J. Frazer, Au.D., Ph.D., DAB No. 3038, at 8 (2021) (“The appeal regulations prohibit the Board from admitting into the record in Medicare enrollment appeals evidence not proffered to the ALJ.”).  Petitioner notes that the office manager’s

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Declaration is “not being offered as additional evidence in support of this appeal” but rather as a contextual “summary” before the Board.  Reply at 4 n.3.  That assertion cannot circumvent 42 C.F.R. § 498.86(a) because the Declaration, signed “[u]nder penalties of perjury,” is testimonial evidence.  See Ex. A to Reply at 3; Shiloh First Health Care, Inc., DAB No. 2974, at 6 (2019) (“A witness declaration is evidence.”).

II. The ALJ’s dismissal of Petitioner’s hearing request for abandonment pursuant to 42 C.F.R. § 498.69 was not an abuse of discretion.

“An ALJ is authorized, by regulation, to dismiss a request for hearing for abandonment.”  Consol. Cmty. Res., Inc., DAB No. 2676, at 5 (2016).  An ALJ may dismiss a party’s hearing request for abandonment if the party “[f]ails to appear at the prehearing conference or hearing without having previously shown good cause” and “[f]ails to respond, within 10 days after the ALJ sends a ‘show cause’ notice, with a showing of good cause.”  42 C.F.R. § 498.69.  “The Board has ruled that an ALJ may reasonably construe an appellant’s failure to file a prehearing document as tantamount to failure to appear for a prehearing conference or hearing.”  Union Pharmacy & Med. Supplies, Inc., DAB No. 3062, at 7 (2022); see also Axion Healthcare Srvcs., LLC, DAB No. 2783, at 3 (2017) (“[A]n ALJ may reasonably construe a petitioner’s failure to file a prehearing document as tantamount to failure to appear for a prehearing conference or hearing as specified in section 498.69(b)(1).”).  “Parties have a responsibility to follow an ALJ’s scheduling order, as well as to respond to an order to show cause.”  NBM Healthcare, Inc., DAB No. 2477, at 5 (2012). 

Petitioner argues that “federal courts have held that dismissal must be a sanction of last resort and should only be entered if noncompliance is willful or a bad faith disregard for the court’s orders.”  Reply at 7.  From several federal decisions addressing dismissal standards under the Federal Rules of Civil Procedure, Petitioner distills this proposition:

In determining whether a court has abused its discretion in dismissing an action as a sanction, an appellate court is guided by the following factors: (i) the extent of the party’s personal responsibility; (ii) the prejudice to the adversary caused by the failure to meet scheduling orders and respond to discovery; (iii) a history of dilatoriness; (iv) whether the conduct of the party or the attorney was willful or in bad faith; (v) the effectiveness of sanctions other than dismissal, which entails an analysis of alternative sanctions[;] (vi) the meritoriousness of the claim or defense.

Id.  Petitioner claims the Dismissal “was an abuse of discretion” under these factors.  Id.

“Petitioner did not raise these new arguments before the ALJ” and cannot raise them for the first time to the Board.  See Jeffrey K. McIlroy, MD, Inc., DAB No. 3143, at 16 (2024) (citing Guidelines, “Completion of the Review Process” (¶ (a)).  The ALJ told

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Petitioner it could ask for the Dismissal to be “vacated pursuant to 42 C.F.R. § 498.72.”  Dismissal at 2.  That regulation empowers an ALJ to vacate dismissal “if a party files a request to that effect within 60 days from receipt of the notice of dismissal and shows good cause for vacating dismissal.”  42 C.F.R. § 498.72.  “If Petitioner had any problems . . . that impeded its ability to respond to the Order to Show Cause by the due date, it could have offered that explanation to the ALJ . . . in accordance with section 498.72 so that the ALJ could determine whether the explanation established sufficient grounds for vacating the dismissal.”  Union Pharmacy at 6.  Petitioner did not take that step, but instead appealed, and in such circumstances dismissal is warranted.  See Consol. Cmty. at 5-6 (sustaining dismissal where petitioner “could have asked the ALJ to vacate the Dismissal under 42 C.F.R. § 498.72,” but “elected not to do so, choosing instead to file an appeal with the Board,” and thus denied the ALJ “an opportunity to consider the merits of its good cause claims”); Parvin Shafa MD Inc., DAB No. 2846, at 8 (2018) (holding, when petitioner “chose not to submit anything to the ALJ and instead waited until her appeal to us to proffer explanations,” that “[t]he ALJ acted reasonably in ultimately enforcing his orders and dismissing the request for hearing”).

Even if Petitioner had proffered its explanation to the ALJ, it would establish no “good cause.”  The 42 C.F.R. Part 498 regulations do not define “good cause.”  Union Pharmacy at 6 n.9; Consol. Cmty. at 5 n.5.  “Here, as in prior cases,” however, “we need not define the term because we conclude no reasonable definition of good cause encompasses the lapses for which Petitioner is responsible.”  Heritage Convalescent Ctr., DAB No. 3072, at 8 (2022) (internal quotation marks and citation omitted).  The Standing Order let Petitioner request a waiver from electronic filing if Petitioner was “unable to access” DAB E-File, but Petitioner never requested a waiver.  See Standing Order at 2.  The CRDP advised parties registered for DAB E-File, including Petitioner, that they “are responsible for ensuring that automatic e-mail notices from DAB E-File are not blocked by spam or other filters.”  CRDP at 5-6.  As Petitioner concedes, its office manager received email notices of all relevant filings via DAB E-File; it was only a preventable “internal communication error” involving a spam filter that delayed Dr. Cronin’s personal receipt of those emails.  Reply at 4. 

Petitioner also relies on inapposite legal authority.  The Federal Rules of Civil Procedure do not bind the Board.  Experts Are Us, Inc., DAB No. 2342, at 8 (2010).  Nor do decisions from federal judicial districts “different than the one from which the pending Board appeal arises,” William Garner, M.D., DAB No. 3026, at 11 (2020), or “judicial circuits other than the circuit to which . . . the pending matter may be appealed,” Frazer at 13 n.15.  To dismiss for abandonment, the ALJ only had to follow 42 C.F.R. § 498.69.  The Board sometimes consults the Federal Rules and federal case law for guidance when reviewing a dismissal, but Petitioner’s cited authorities show no abuse of discretion here.  See, e.g., Shepherd v. Annucci,921 F.3d 89, 97-98 (2d Cir. 2019) (holding “dismissal was not an abuse of discretion” where litigant “unquestionably received adequate notice” before dismissal); Florence v. Decker,153 F. App’x 478, 479-80 (10th Cir. 2005)

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(holding dismissal was not abuse of discretion where litigant “was fully warned of the possibility of dismissal for failure to comply with the order to show cause”).  Notably, Petitioner cites authorities that list additional factors for consideration that would support the Dismissal in this case.  See Gibbs v. Nate-N-Al’s Deli,79 F.3d 1153, at 2 (9th Cir. 1996) (unpublished table decision) (stating tribunal “must weigh” as factors “the public’s interest in expeditious resolution of litigation” and “the court’s need to manage its docket”); United States v. $15,333.00 in U.S. Currency,988 F. Supp. 2d 1229, 1233 (D. Or. 2013) (stating factors for consideration including “the public’s interest in expeditious resolution of the litigation” and “the court’s need to manage its docket”).

Finally, Petitioner’s selected factors are largely equitable in nature and “the Board has consistently held that neither it nor the ALJs have the authority to provide equitable relief” in this context.  Sunview Care & Rehab Ctr. LLC, DAB No. 2713, at 12 (2016).  Even if subject to consideration, the equities would not favor Petitioner.  Party representatives must “take reasonable steps to verify that DAB E-File is reliably delivering notices of document uploads,” and an “apparent lack of diligence” in doing so, regardless of bad intent, is enough to support dismissal.  Allan L. Silverstein, M.D., DAB No. 2908, at 8-9 (2018).  Petitioner “had independent access at all times to the docket for [its] case” and “offers no explanation for allowing months of inaction to pass without checking that docket to determine the status of [the] case.”  Shafa at 7.  A party’s retention of counsel after noncompliance with a scheduling order and show cause order “is simply not relevant to the issue” of good cause.  NBM Healthcare at 5; see also Maximum Hospice & Palliative Care, DAB No. 2898, at 1, 6-7 (2018).  Upholding the Dismissal is consistent with the Board’s overarching responsibility to ensure the efficiency and integrity of proceedings before us and due regard for the orders of ALJs.  See Sunview Care at 11.

Conclusion

The Dismissal was not an abuse of discretion by the ALJ and therefore we sustain it.