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

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

NOT FOR PUBLICATION WITHOUT THE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.

July 24, 2017
2 A-4389-15T1

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 
3 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 fluorodeoxyglucose 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.
4 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 FDGPET 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 FDGPET 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 
5 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, 
6 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.
7 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 
8 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.