Employed-Physician Compensation After Erlanger: FMV Files, Scienter, and Commercial Reasonableness

Noam B. Fischman, Co-Team Leader, Healthcare Litigation | Akerman LLP

Noam B. Fischman co-leads Akerman’s Healthcare Litigation team from Washington, D.C., where he helps hospitals, behavioral health centers, ambulance companies, skilled nursing facilities, pharmaceutical and life sciences companies, and healthcare vendors manage risk from fraud and alleged false claims. He has written repeatedly on the False Claims Act’s knowledge standard, including “SafeCo No More: The Changing Landscape of Scienter under the False Claims Act” in June 2023 and “Mind Games: SCOTUS to Rule on what ‘Knowing’ Means under the False Claims Act” in January 2023, and co-authored Akerman’s January 2026 review of False Claims Act enforcement trends for fiscal year 2025. His healthcare practice spans more than 25 years.

• Education & Credentials

Mr. Fischman earned his J.D. with honors from The George Washington University Law School in 1999, where he was Notes Editor of The Environmental Lawyer, and his B.A. with high honors from the Rutgers University Honors Program in 1996, where he was an Undergraduate Associate of the Eagleton Institute of Politics. He is admitted to the bars of the District of Columbia, Maryland, and Virginia, and to the U.S. Courts of Appeals for the District of Columbia, Fourth, and Ninth Circuits and the U.S. District Courts for the District of Columbia and the District of Maryland.

• Recognition & Leadership

He leads Akerman’s Healthcare Litigation team as Co-Team Leader and, before joining the firm in March 2022, chaired the Mergers & Acquisitions Litigation Working Group at Polsinelli. He was named The Capital Pro Bono Honor Roll in 2023 and was recognized as a Rising Star by Super Lawyers Magazine for Washington, D.C. in 2013 and 2014. Since July 2025 he has chaired the board of directors of the Bender JCC of Greater Washington, an organization he has served since 2017, beginning as its pro bono general counsel.

• Professional Involvement

Mr. Fischman writes and speaks regularly on healthcare enforcement. He co-hosts The Akerman Angle: Health Law Rx podcast, including a December 2025 episode on government healthcare enforcement policies, is a frequent author on Akerman’s Health Law Rx blog, co-authored a February 2023 article in the American Health Law Association’s Health Law Weekly, and presented a December 2022 Thomson Reuters West LegalEdcenter webinar. He has been quoted on False Claims Act developments by Law360, Bloomberg Law, Corporate Compliance Insights, and Healthcare Risk Management, including on the Eleventh Circuit’s September 2026 qui tam ruling.

• Experience

His False Claims Act work includes arguing a successful Ninth Circuit appeal for a major ambulance company in multi-year litigation involving hundreds of thousands of allegedly false claims, winning a motion to dismiss for a hospital facing False Claims Act allegations from a senior official, winning a motion to dismiss in a government contracts False Claims Act case, defending an educational institution against False Claims Act allegations concerning government grants, representing a healthcare trade association in responding to Congressional subpoenas, and defending nursing homes challenging Small Business Administration PPP loan determinations. He has conducted an internal investigation for a hospital system on Foreign Corrupt Practices Act risk arising from an international joint venture and dozens of corruption-related due diligence reviews. His broader practice includes fiduciary duty defense, including securing reimbursement of all defendants’ fees and costs for five former directors of a life sciences company, commercial disputes, and post-closing litigation in healthcare transactions.

Charles B. Oppenheim, Partner | Hooper, Lundy & Bookman

Charles B. Oppenheim is a Partner at Hooper, Lundy & Bookman in Los Angeles and San Francisco whose practice centers on the Stark Law and federal anti-kickback law, fraud and abuse counseling, hospital-physician integration, and value-based arrangements. He co-authored the American Health Law Association’s monograph on the Stark Law, first written in 1998 and now in its eighth edition for 2026, and his work on the statute was cited by the Fourth Circuit Court of Appeals in United States ex rel. Drakeford v. Tuomey in 2015. He has been ranked by Chambers USA as a top California health care attorney every year since 2010.

• Education & Credentials

Mr. Oppenheim earned his J.D. from Fordham University School of Law in 1988, where he was a member of the Fordham Law Review, and his B.A. from Cornell University in 1984. He was admitted to the California bar in 1988.

• Recognition & Leadership

He was named a Fellow of the American Health Law Association in 2026 and has been listed in Best Lawyers for Health Care Law from 2013 through 2027, in Chambers USA as a top California health care lawyer from 2010 through 2026, in Super Lawyers for Southern California from 2004 through 2026, and among the Daily Journal’s Top Health Care Lawyers in California in 2023. He is AV rated by Martindale-Hubbell, received the Leading Lawyer Award from The Ambulatory M&A Advisor in 2015, and appears in Who’s Who in America and Who’s Who in American Law. He is a past chair of the Los Angeles County Bar Association’s Annual Healthcare Law Compliance Symposium and a past chair of the State Bar of California’s Health Law Committee of the Business Law Section.

• Professional Involvement

Mr. Oppenheim is a member of the American Bar Association Health Law Section, the American Health Lawyers Association, and the California Society for Healthcare Attorneys, and serves on the planning committee of the Los Angeles County Bar Association’s Healthcare Law Section. He donates legal services to Los Angeles charities and previously served as Finance Committee Chair and Board Trustee of The Accelerated School, a charter school in South Central Los Angeles.

• Experience

His matters include structuring value-based enterprises and arrangements under the Stark Law exceptions that took effect in 2021, and integrating physicians and hospitals through joint ventures and affiliations. Representative engagements include a joint venture among a nonprofit health system’s four hospitals, two medical groups, and seventeen community physical therapy centers; a $545 million multistep integration of a professional medical corporation; the October 2021 affiliation of a physician enablement company with more than 125 locations, 400 providers, and 42 specialties; a joint venture between a major California medical center and a Pennsylvania operator of 27 outpatient physical therapy clinics; and ongoing counsel to a tattoo removal business with more than 40 studios through a $50 million private equity investment and acquisitions. His practice also covers mergers and acquisitions, compliance programs, managed care and accountable care organizations, ambulatory surgery centers, and hospice.

Michael Shimada, Associate | Hooper, Lundy & Bookman

Michael Shimada is an Associate in the San Francisco office of Hooper, Lundy & Bookman who advises hospitals and health systems, physician groups, medical foundations, ambulatory surgery centers, and public health agencies on business transactions and regulatory compliance, including healthcare fraud and abuse laws, the corporate practice of medicine, and licensing. His transactional work includes the employment, professional services, and restrictive covenant agreements through which providers are engaged and compensated. During law school he served as a legal extern in the Civil Fraud Unit of the U.S. Attorney’s Office for the Central District of California.

• Education & Credentials

Mr. Shimada earned his J.D. from the University of California, Los Angeles in 2021 and his B.A. from the University of California, Los Angeles in 2016. He was admitted to the California bar in 2021.

• Recognition & Leadership

He has been named Best Lawyers: Ones to Watch in Health Care Law for 2026 and 2027.

• Professional Involvement

Mr. Shimada is a member of the American Bar Association Health Law Section.

• Experience

His practice covers commercial contracting, including employment, professional services, data privacy, restrictive covenant, and intellectual property agreements; mergers and acquisitions; joint ventures; and corporate reorganizations, together with the healthcare-specific regulatory questions those transactions raise. Before joining the firm, he practiced at a global law firm, assisting employers with domestic and cross-border employment matters, employment policies and practices, and the workforce aspects of mergers, acquisitions, reorganizations, and spin-offs. He also served as a summer law clerk in the General Counsel Division of the Los Angeles City Attorney’s Office.

SESSION 1 – How the Erlanger Theory Turns a Hospital’s FMV File Into Scienter Evidence | |Noam Fischman | 2:30pm – 3:30pm

This session examines how the DOJ’s theory in United States ex rel. Sullivan v. Erlanger Western Carolina Hospital converts a hospital’s own fair market value documentation—opinions, referral pro formas, consultant warnings, and compensation spreadsheets—into affirmative evidence of scienter under the False Claims Act. Attendees will learn the five specific mechanisms through which an FMV file becomes a liability, the doctrinal role of SuperValu’s subjective-knowledge standard, and the documentation failures most likely to survive a motion to dismiss. Attorneys will leave with a working framework for auditing existing FMV files for scienter risk before litigation or government inquiry begins.

BREAK | 3:30pm – 3:40pm

SESSION 2 – Building the Commercially Reasonable Compensation File: Redesigning Employed-Physician Pay After the April 2026 OIG FAQ |Charles Oppenheim, Michael Shimada | 3:40pm – 4:40pm

This session examines how hospitals and health systems structure and document employed-physician compensation, so the embedded subsidy is defensible as commercially reasonable—not merely fair-market-value compliant—under the Stark Law, Anti-Kickback Statute, and False Claims Act. Attendees will learn what the OIG’s April 23, 2026, FAQ update means when it confirms that fair market value alone does not resolve Anti-Kickback risk, how to design each compensation component—base salary, productivity incentives, administrative stipends, and quality metrics—to withstand scrutiny, and how stacked arrangements combining employment, medical directorships, and call coverage create exposure. Attorneys will leave with a framework for documenting legitimate business purposes hired and at each annual review, so the compensation file reads as commercially reasonable before anyone asks.