                     NOT FOR PUBLICATION WITHOUT THE
                   APPROVAL OF THE APPELLATE DIVISION
  This opinion shall not "constitute precedent or be binding upon any court."
   Although it is posted on the internet, this opinion is binding only on the
      parties in the case and its use in other cases is limited. R.1:36-3.



                                    SUPERIOR COURT OF NEW JERSEY
                                    APPELLATE DIVISION
                                    DOCKET NO. A-4389-15T1

IN THE MATTER OF
THE LICENSE OF CHERYL
ACKERMAN, M.D.,
License No. 25MA06096100

TO PRACTICE MEDICINE AND
SURGERY IN THE STATE OF
NEW JERSEY

________________________________________________________________

           Argued February 14, 2017 – Decided July 24, 2017

           Before Judges Espinosa and Suter.

           On appeal from the New Jersey State Board of
           Medical Examiners.

           Michael Confusione argued the cause for
           appellant Cheryl Ackerman, M.D. (Hegge &
           Confusione, LLC, attorneys; Mr. Confusione, of
           counsel and on the brief).

           Pavithra Angara, Deputy Attorney General,
           argued the cause for respondent New Jersey
           State Board of Medical Examiners (Christopher
           S. Porrino, Attorney General, attorney; Andrea
           Silkowitz, Assistant Attorney General, of
           counsel; Ms. Angara, on the brief).

PER CURIAM
      Cheryl Ackerman, M.D., appeals from the denial by the State

Board of Medical Examiners (Board) of her petition to amend a

consent order.      We affirm.

      Dr.    Ackerman      is   a   board-certified          dermatologist          and

internist, who was licensed to practice medicine in New Jersey in

1994.       In   January    2011,   she        was   referred     to   the   Board's

Professional     Assistance     Program        (PAP),    following     a   number    of

patient complaints. In October 2011, while represented by counsel,

Dr. Ackerman entered into a Private Letter Agreement (PLA) with

the Board in which she agreed to participate in the PAP.

      Dr.   Ackerman    began    therapy        sessions   with    a   psychologist

pursuant to PAP's directives.                  However, the Board temporarily

suspended her license in February 2012 after receiving a letter

from PAP's Executive Medical Director expressing his concern about

her fitness to remain in practice and advising that she had failed

to provide required psychiatric reports.                 After the Board refused

Dr. Ackerman's petitions for reinstatement, she filed an appeal.

We   remanded    the   matter    for   a       hearing   before    the     Office    of

Administrative Law (OAL).

      The Administrative Law Judge (ALJ) ordered Dr. Ackerman to

"undergo updated evaluations and diagnostic testing" with Dr.

Mijail Serruya, a board-certified neurologist.                  Dr. Serruya found

that Dr. Ackerman did not display signs of "frontotemporal dementia

                                           2                                  A-4389-15T1
or any other active neurodegenerative process."            Although certain

aspects of Dr. Ackerman's behavior "could be concerning for frontal

lobe dysfunction," he opined that these aspects were mild.                  Dr.

Serruya    later   modified   his   report     following   his     review    of

additional materials.      He concluded that a differential diagnosis

of certain symptoms included "an agrammatic primary progressive

aphasia"   that    could   "be   related     to   frontotemporal     dementia

processes."    Dr. Serruya's recommendations included an updated

magnetic resonance imaging (MRI) of Dr. Ackerman's brain, a fluoro-

deoxyglucose   positron    emission       tomography   (FDG-PET)    scan    and

follow-up neuropsychology.

     Dr. Ackerman, represented by counsel, entered into a consent

order in the OAL that reinstated Dr. Ackerman's license, subject

to certain conditions, which included the following:

            [Dr. Ackerman] shall resume the practice of
            medicine only in the employ of another
            physician approved by the Board and shall not
            engage in solo practice absent approval from
            the Board. [Dr. Ackerman] shall report to the
            Board the name and address of the physician
            with whom she is employed.     This physician
            shall evaluate [Dr. Ackerman's] skills to
            practice medicine and report any concerns
            regarding [Dr. Ackerman's] practice to the
            Board's   Medical   Director . . . .      [Dr.
            Ackerman] is permitted to seek Board approval
            to practice in a solo setting after she has
            practiced in an employment setting for two (2)
            years.



                                      3                               A-4389-15T1
Within ninety (90) days of the entry of this
consent order, [Dr. Ackerman] shall obtain an
FDG-PET scan of her brain. Within ten (10)
days of the scan, a report shall be provided
to [the] Medical Director of the Board, Dr.
Serruya and a neurologist of [Dr. Ackerman's]
choosing who shall be identified to the
Board. . . .   If the results of the FDG-PET
scan show marked problems, [Dr. Ackerman]
shall be required to have yearly follow-up
treatment related to such problems, at her own
expense, with a neurologist of her choosing.

[Dr. Ackerman's] failure to obtain the FDG-
PET scan and provide copies of the results
within the time period specified above shall
result in the entry of an Order of automatic
suspension of [Dr. Ackerman's] license without
notice. [Dr. Ackerman] shall have the right
to apply for removal of the automatic
suspension on five (5) days notice but in such
event shall be limited to a showing that
information of her failure to obtain the FDG-
PET scan and/or provide copies of the results
in a timely manner was false.

Within the next twelve (12) months, and at
yearly intervals thereafter, [Dr. Ackerman]
shall arrange for follow-up neurological
examinations with a neurologist of her
choosing.   Within thirty (30) days of each
such     examination,     [Dr.     Ackerman's]
neurologist shall provide a full report to the
Board's Medical Director . . . .     Prior to
[Dr. Ackerman's] first examination with her
neurologist, [Dr. Ackerman] shall undergo an
MRI (with and without contrast) of her brain.
The results of this scan shall be provided to
[Dr. Ackerman's] neurologist for his/her
evaluation.

[Dr. Ackerman] shall continue to attend
treatment with Ben J. Susswein, Ph.D.    Dr.
Susswein shall provide quarterly reports to
the Board's Medical Director . . . regarding

                      4                          A-4389-15T1
            [Dr. Ackerman's] ongoing fitness to practice
            medicine.

     In March 2016,        with new counsel, Dr. Ackerman filed an

emergent motion with the Board to amend the consent order, seeking

the removal of all restrictions on her medical license and all

prior public Board orders posted on the Board's website, and the

issuance    of   a   declaration   that   she   had   complied      with   all

psychological reporting obligations imposed by the Board and a

guarantee that no further conditions would be placed on her license

and no further psychological testing would be required.                    She

further asked that if a hearing should become necessary, it be

held in the OAL.      The Attorney General opposed the motion.

     In April 2016, the Board denied Dr. Ackerman's petition to

amend the consent order.       In the order denying her petition, the

Board rejected Dr. Ackerman's contention that the ALJ had directed

the entry of a consent order that reinstated her license without

any restrictions.       The Board found the conditions imposed were

reasonable and that the consent order was valid and entered into

with the advice of counsel.

     The Board's findings also included a review of Dr. Ackerman's

submissions to the Board, stating her "writings indicate extremely

problematic thought processes," and a "continued inability to

follow     the   Board's   prior   direction."        The   Board    stated,


                                     5                                A-4389-15T1
"[c]ollectively, these issues cause the Board great concern about

the status of [Dr. Ackerman's] mental health, her ability to

control her impulses and her own insight into her condition and

abilities."

     The Board also noted that Dr. Ackerman failed to refer to Dr.

Serruya's addendum to his final report, in which he substantially

modified his initial opinion and expressed deep reservations about

her ability to practice medicine.               His   concern that certain

symptoms    could     be     related   to    frontotemporal    dementia     was

consistent with prior diagnoses by other physicians.

     The Board reaffirmed its finding that "it is not in the

interest of public safety to permit [Dr. Ackerman] to practice

absent,    at   the   very    least,   the   protections    embodied   in   the

[c]onsent [o]rder to which she agreed."

     In March and April 2016, Dr. Ackerman's counsel engaged in

communications with the Attorney General's office, contending she

was unable to secure malpractice insurance.                However, only one

rejection letter was submitted as proof.               The Deputy Attorney

General referred her attorney to N.J.S.A. 45:9-19.17 and N.J.A.C.

13:35-6.18 for the definition of when malpractice insurance is

"not available" and provided additional direction regarding the

proof necessary to make that showing.            The Board represents that

Dr. Ackerman has not made the requisite showing to date.

                                        6                              A-4389-15T1
     In her appeal, Dr. Ackerman argues the Board erred in denying

her request to amend the consent order.         She contends she cannot

obtain malpractice insurance or secure employment if her license

is listed as "restricted."      She argues the Board can suspend or

revoke her license only upon proof of one of the statutory grounds

set forth in N.J.S.A. 45:1-21, and there is not substantial,

credible evidence in the record to support the Board's claim that

its action is warranted by subsection (i), which permits suspension

or revocation when the physician "[i]s incapable, for medical or

any other good cause, of discharging the functions of a licensee

in a manner consistent with the public's health, safety and

welfare."    She   also    argues   the    Board's   action   constitutes

discrimination against her in violation of the Rehabilitation Act,

29 U.S.C.A. § 794(a).     We have considered these arguments in light

of the record and applicable law and conclude they lack merit.

     Our review of the Board's decision is limited.                Circus

Liquors, Inc. v. Governing Body of Middletown Twp., 199 N.J. 1, 9

(2009).   We must sustain the agency's action in the absence of "a

'clear showing' that it is arbitrary, capricious, or unreasonable,

or that it lacks fair support in the record." Ibid. Additionally,

we give "great deference" when an agency interprets a statute

"within its scope of authority."        In re N.J.A.C. 7:1B-1.1 Et Seq.,

431 N.J. Super. 100, 114-15 (App. Div.) (quoting N.J. Ass'n of

                                    7                             A-4389-15T1
Sch. Adm'rs v. Schundler, 211 N.J. 535, 549 (2012)), certif.

denied, 216 N.J. 8, and 216 N.J. 363 (2013).                  "If there is any

fair argument in support of the course taken by the agency or any

reasonable ground for difference of opinion among intelligent and

conscientious officials, the decision" should not be disturbed.

Lisowski v. Borough of Avalon, 442 N.J. Super. 304, 330 (App. Div.

2015) (quoting City of Newark v. Nat. Res. Council in Dep't of

Envtl. Prot., 82 N.J. 530, 539, cert. denied, 449 U.S. 983, 101

S. Ct. 400, 66 L. Ed. 2d 245 (1980), certif. denied, 227 N.J. 374,

and certif. denied, and appeal dismissed, 227 N.J. 380 (2016)).

      In this case, the agency action directly implicates the

Board's expertise in the field of medicine.               See In re License

Issued to Zahl, 186 N.J.        341, 353 (2006).           The Board's order

articulated   findings   that   fell      within    its   superior    knowledge

regarding the standard to be applied in determining the fitness

of a physician to practice.         The findings were also supported by

specific references to the record before it.              In short, there is

no   clear   showing   that   the    Board's       decision    was   arbitrary,

capricious or unreasonable.

      Affirmed.




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