Crime & Courts

Kansas oncologist subject of federal Medicare fraud suit for unnecessary treatments

Audits at the Hutchinson Clinic found some treatment issues with patients of oncologist Mark Fesen, who left the clinic in 2011.
Audits at the Hutchinson Clinic found some treatment issues with patients of oncologist Mark Fesen, who left the clinic in 2011. The Wichita Eagle

The federal government plans to sue a Kansas oncologist for allegedly submitting fraudulent claims to government insurers — including Medicare, Medicaid and TRICARE — for cancer treatments that were medically unnecessary.

Mark Fesen, who was the subject of an investigation four years ago by The Wichita Eagle, worked for the Hutchinson Clinic from 1993 to 2011, until he left to work for Central Care Cancer Center, which has offices across the state. The center’s website says Fesen currently works at its offices in Wichita and Great Bend.

A whistleblower lawsuit was filed by Frank Tra, a former clinical oncology pharmacist at the Hutchinson Clinic, in 2014. Some of those court documents were recently unsealed at the request of U.S. Attorney Stephen McCallister, whose office plans to file its own lawsuit within 90 days, court documents say. The remainder of the documents remain under seal “because such papers discuss the content and extent of the United States’ investigation.”

Fesen, the Hutchinson Clinic, and Fesen’s current employer, Central Care Cancer Center, did not respond to requests for comment. In 2014, Fesen and the clinic released statements saying they could not comment due to legal concerns.

According to the suit, Tra began in 2008 reviewing “denials” for Fesen’s claims by insurance providers, including Medicare and Medicaid. It was during Tra’s processing of the denials that he became aware of problems with Fesen’s treatment of patients.

Tra alerted the clinic, which eventually invited an outside auditor to review Fesen’s practice two separate times.

The audits found widespread compliance issues with the National Comprehensive Cancer Network guidelines, including issues with misdiagnosing patients, inappropriately treating patients, overtreating patients and “fractionated dosing,” where a physician splits the dosage of chemotherapy or related drugs and administers them over a period of days or weeks. This practice can make the drugs less effective, and allow for a physician to bill for multiple office visits.

The Wichita Eagle previously obtained copies of the audits, which contained aggregate data about the practice, communications between the auditor and clinic executives and several case reviews that looked more in-depth at patient diagnoses. Patients’ names were redacted.

One patient was treated for more than four years as having lymphoma, a cancer of the lymphatic system. The patient didn’t have cancer, according to the auditor.

An 86-year-old patient had MGUS — monoclonal gammopathy of undetermined significance, a noncancerous condition that usually causes no problems and generally requires no treatment, according to the Mayo Clinic. The patient was “inappropriately” treated for nearly three years with the chemotherapy drug cyclophosphamide, according to a case review.

In another case review, the radiological diagnosis of active lymphoma in an 83-year-old “is a fantasy,” the auditor wrote. That patient was given Rituxan, an antibody drug used with chemotherapy, almost continuously for eight years. Because it can damage the immune system, the manufacturer says that the drug should not be used for more than two years.

Some patients’ records were too poorly documented to tell whether they were compliant, according to the audits, and the auditor also questioned whether Fesen was competent to treat patients with lymphoma and blood cancers.

“A significant fraction of them are being unnecessarily treated — often too early, too much and too long,” he wrote. “Dr. Fesen’s default is to treat, treat and treat some more.”

Mark Fesen mug for ONLINE.jpg
Mark Fesen Courtesy photo

The lawsuit claims that the Hutchinson Clinic never informed Fesen’s patients of its findings and never attempted to pay back government insurers for false claims payments.

Originally from New Jersey, Fesen graduated from the Robert Wood Johnson School of Medicine at Rutgers University in 1987. After completing his residency and a fellowship with the National Cancer Institute, he started his practice at the Hutchinson Clinic in 1993, according to biographical information in his book “Surviving the Cancer System.”

Fesen has hospital affiliations throughout Kansas, according to Medicare. He also was appointed to a congressional advisory committee on health care in 2014 by Rep. Pete Sessions, R-Texas.

“We’re pleased the government is intervening on the claims of unnecessary cancer treatments,” said Mark Kistler, an attorney for Tra, the whistleblower. “My understanding is the government only intervenes in about 25 percent of the False Claims Act cases filed.”

In whistleblower lawsuits under the False Claims Act, a person who gives information to the government about potential fraud or abuse against the government can ultimately receive 15 to 25 percent of the money the government recovers.

Data previously obtained by The Eagle through the Freedom of Information Act showed that Fesen was one of the top Medicare billers in the state, but his claims dropped during and after the internal audits.

In 2009, Fesen’s practice was reimbursed slightly more than $9.5 million by Medicare. That declined to about $7.9 million in 2010, the year internal audits began at the clinic. In 2011, he was reimbursed just over $7 million by Medicare.

At the time the audits began, the Hutchinson Clinic spent about $30 million annually on cancer drugs and had about 750 new cancer patients each year, according to internal documents.

“This is wonderful news,” Marian Rank, a patient whom Fesen treated in 2010, told The Kansas City Star. “I had given up. The idea of going through chemo when it was all for money is just unreal.”

Rank had breast cancer in 2010, when she was 66. At the time, she said, Fesen recommended she go through chemotherapy, but opinions from other doctors found that, after additional testing, a lumpectomy, radiation and anti-hormone pills would be enough and that the chance of her cancer returning was low.

One of the additional opinions she received was from oncologist Shaker Dakhil, president of Cancer Center of Kansas in Wichita.

“It’s not surprising that this is being pursued by the government, and the sad part is that since this has been going on since at least four years ago, Fesen was still practicing all over the state of Kansas, including Wichita,” Dakhil told The Star. “We don’t know whether he’s changed in the way he treats patients.”

Dakhil said that in recent years, Medicare has increased its scrutiny of physician claims for reimbursement. Previously, physicians would submit claims and then if the government audited it and found issues with the treatment not meeting guidelines, they would “slap your hand,” Dakhil said.

“Now, if you submit a claim not on (National Comprehensive Cancer Network) guidelines without a high level of evidence, the claim will be rejected,” he said.

Rank complained for years to the Kansas Board of Healing Arts about her treatment under Fesen, but no official actions were taken against him. She said she stopped receiving letters with updates on the board’s investigation of her claims about two years ago.

“That’s a sad state of affairs when you have something like this happen and he’s still able to practice,” Dakhil said.

“We have a system, with the Board of Healing Arts, where unless they’re convicted, nothing shows up ... they don’t care. We have a system that doesn’t really discipline someone. ... They protect each other.”