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Maryann anderson v. Board of School Directors of the Millcreek Township School District

March 26, 2013

MARYANN ANDERSON, PLAINTIFF,
v.
BOARD OF SCHOOL DIRECTORS OF THE MILLCREEK TOWNSHIP SCHOOL DISTRICT, ET AL., DEFENDANTS.



The opinion of the court was delivered by: McLAUGHLIN, Sean J., District J.,

MEMORANDUM OPINION

This civil action was commenced on May 11, 2007 by Plaintiff Maryann Anderson, a former administrator with the Millcreek Township School District, who claims that she was terminated from her employment as a result of whistleblower activity. She has filed claims under 42 U.S.C. §1983 and the Pennsylvania Whistleblower Law*fn1 against Defendants Rebecca Mancini (a former fellow administrator), Susan Sullivan (a former member of the school board), and Dean Maynard (the former Superintendent of Millcreek Township School District).*fn2 This Court has subject matter jurisdiction over the matter pursuant to 28 U.S.C. §§ 1331, 1343, and 1367.

Presently pending before this Court are motions for summary judgment filed on behalf of the Defendants. For the reasons that follow, these motions will be granted.

I. STANDARD OF REVIEW

Pursuant to Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment shall be granted when no genuine dispute exists as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). "A disputed fact is 'material' if it would affect the outcome of the suit as determined by the substantive law," Bouriez v. Carnegie Mellon Univ., 585 F.3d 765, 771 (3d Cir.2009) (citation omitted), and a factual dispute is "genuine," and thus warrants trial, "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, 477 U.S. 242, 248--49, 252 (1986). Accordingly, in order for a claim to survive summary judgment, "there must be [significantly probative] evidence on which the jury could reasonably find for the plaintiff." Id.

For purposes of Rule 56, we view the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in favor of that party. Jones v. Hashagen, No. 12-2220, 2013 WL 363444 at *1 (3d Cir. Jan. 31, 2013). In order to prevail against a motion for summary judgment, however, the nonmoving party "must present more than just 'bare assertions, conclusory allegations or suspicions' to show the existence of a genuine issue." Podobnik v. U.S. Postal Serv., 409 F.3d 584, 594 (3d Cir.2005).

II. BACKGROUND FACTS*fn3

The Parties

Anderson was employed by the Millcreek Township School District (hereinafter "MTSD" or the "District") from 1998 until July 2009, when she became the Superintendent of the Kane School District in Pennsylvania. (D 1, 5.) From 1996 to July 2006, Anderson served as the Supervisor of Special Education and Student Services for MTSD. From 2006 to July of 2009, she served as the Director of Personnel. (D 2.)

In July of 2006, Defendant Mancini was hired by MTSD as the Supervisor of Special Education and Student Services, thus replacing Anderson in that position when Anderson became Director of Personnel. Mancini's first day on the job at MTSD was Monday, August 14, 2006. (D 6.) At all times relevant to this lawsuit, Maynard served as the Superintendent of MTSD and had supervisory authority over Anderson and Mancini (D 7, D 21), while Sullivan served as a member of the District's School Board of Directors. (D 8.)

The ACCESS Program

Since 1996, MTSD has been receiving funds under the Pennsylvania Department of Education's ("PDE's") School-Based ACCESS Program ("SBAP"). SBAP is a medical assistance ("MA") program that provides partial reimbursement to school entities with federal money for direct eligible health related services provided by the school to Medicaid-eligible special education students as part of their Individualized Education Plan. (D 43.)

SBAP is a cooperative effort between the PDE, the Pennsylvania Department of Public Welfare ("DPW"), the Federal Centers for Medicare and Medicaid Services, and PDE's contractor, Leader Services ("Leader"). (D 41, D 42.) Leader is a government contractor that administers ACCESS on PDE's behalf, working with the School District to train participants, verify eligibility, process claims for reimbursement from school districts, and submit claims to DPW for reimbursement. (D 44.) The School District submits claims for reimbursement for eligible services to DPW through Leader. Payment for approved claims is sent by DPW to PDE and resides in the District's restricted account at PDE. (D 45.)

Reimbursements received by school districts must be used to enhance existing special education services within the school district, such as purchasing assistive technology or computers and funding new special education staff positions. (D 46.) Services billed by MTSD through the ACCESS Program must be needed as related to the student's medical diagnosis, must be outlined in the student's IEP annually, and must be approved by the parent signing the IEP at the annual meeting. (D 47.) Pursuant to Medical Assistance regulations, MTSD was responsible for verifying the accuracy of all claims information involved in submissions for reimbursement. (D 48.)

As Supervisor of Special Services, Anderson was responsible for the administration of MTSD's School-Based ACCESS Program for a period of time including the period from January 1, 1995 through June 30, 2006. (D 55, 62.) Among her job duties as Supervisor of Special Services was Anderson's responsibility to ensure the District's compliance with SBAP procedures and regulations. (D 63.)

Mancini Takes Over as Supervisor of Special Education/Student Services Mancini assumed the position of Supervisor of Special Education/ Student Services on or about August 14, 2006. (D 64.) In taking that position, Mancini assumed the same job duties and responsibilities relative to administration of the ACCESS Program as were previously held by Anderson, including direct communication with top officials at PDE and DPW as well as with Leader so as to ensure the District's compliance with applicable federal and state SBAP regulations. (D 30, 65.)

Within the first two weeks of her employment, Mancini developed concerns which she then related to Maynard about what she perceived as improper billing practices being carried out under the ACCESS program. In particular, Mancini became concerned about: (a) bills which had been submitted relative to learning support students who had no medical diagnosis, (b) personal care assistants who had been billing for instructional and educational time in the classroom (as opposed to time spent rendering health-related services), and (c) certain providers who had been billing for services in which they lacked proper certification. (D.A. 224-225.)

In addition, during her first week occupying Anderson's former office, Mancini discovered various gift cards in her desk which, she was told, had been used as incentives and for teacher recognition. (D.A. 996, 1014.) This discovery prompted Mancini to email Anderson on August 25, 2006 requesting that Anderson turn over any remaining gift cards and demonstrate to Mancini how she (Anderson) had "track[ed] or document[ed] their distribution." (D.A. 1014.)

Anderson replied:

You can have and do whatever you want. I ordered them under student/staff incentives through ACCESS and sent them out for peer mediators, gave to teachers when they volunteered for meetings, gave to teachers when they asked for them for students. I gave quite a bit to student services at MIHS for various things. I did not track each card, when people asked for them and needed them, I provided. The cards were used to purchase food for meetings. It was not only special education/services, when other people needed incentives, if I had any I gave them what I have. I do have some left and will leave them for you to do as you wish. I did not give them to staff when they were already being compensated. For example, if they were getting paid, I did not give incentives. This was for times above and beyond . It was very much appreciated. (D.A. 1014.)

Believing this response to be insufficient and also inaccurate based on what she had heard from other MTSD employees concerning Anderson's use of gift cards, Mancini reported her concerns to Maynard and turned the remaining gift cards over to him. (D.A. 241-243.) From September 2006 onward, gift cards were no longer used in the Special Education Department. (Id.)

According to a chronology of events prepared by Anderson, Mancini reportedly told fellow staff members during a September 2006 Special Services staff meeting that Anderson had improperly given out gift cards to staff. (D 76.) That same month, during the first Student Service Committee meeting she attended, Mancini expressed to Defendant Sullivan her concerns about whether the District had been properly billing ACCESS in the past. (D 77.)

It is undisputed that Mancini had discussions with Sullivan during the fall of 2006 about Mancini's concerns relative to the billing, receipt, and expenditure of ACCESS funds within MTSD, including billings for personal care assistants. (D 80.) Mancini also discussed these issues with Maynard, who was her supervisor. (D 79.)

On September 8, 2006 Mancini sent an email to Anderson stating that Mancini was working on ACCESS billing -- specifically, the verification of credentials and certifications of providers for which the District had billed ACCESS. (D 81.) On September 11, 2006, Mancini sent another email to Anderson regarding the certifications and credentials of a Chris DeFillipo and the District's ability to bill ACCESS solely for his interpreting time. Mancini further requested that Anderson help her locate a prior comprehensive ACCESS audit referenced by Anderson in a prior email. (D. 82.) Anderson does not contend that these inquiries by Mancini regarding ACCESS certification and gift cards were retaliatory. (D 74, 83.)

Nonetheless, on November 6, 2006, Anderson discussed with her attorney a situation that she saw developing with Mancini and Maynard's apparent support for what Anderson perceived as Mancini's negative attitude and actions toward Anderson. (D 85.) Anderson's attorney advised her to put her concerns in writing and send them to Maynard. (D 86.) Following this advice, Anderson wrote a formal letter to Maynard, dated November 6, 2006, in which she asked Maynard to instruct Mancini to refrain from making derogatory remarks and comments about previous practices to others. (D 87.) The comments which Anderson found objectionable had to do with Mancini suggesting that IEPs and re-evaluations were out of compliance and that the use of gift cards as incentive awards had been improper. (D 88.)

On December 12, 2006, Anderson again raised concerns to Maynard about her relationship with Mancini. (D 89.) Two days later, Mancini sent an email to Maynard, stating in part:

I respectfully request mentorship reassignment. I am working very hard to maintain constructive interactions with Dr. Anderson about the administrative issues. Given the fact that she has categorized my behavior as "unprofessional" twice in meetings with you, I am not confident that she and I can interact constructively on this level. I don't see the situation improving as information about ACCESS billing comes to light. Dr. Anderson has been largely absent in the transition process in changing leadership in the special education office; she scheduled two meetings for mentorship purposes in November and did not attend either. I would be grateful if an alternative arrangement might be possible. (D.A. 1463.)

ACCESS Review by IU5

On February 14, 2007, Sandy Schulz, ACCESS Coordinator for MTSD, began a medical leave of absence. (D 95.) The leave stemmed from stress that Schulz was experiencing relative to concerns over improprieties with ACCESS billing. (D.A. 770.) As the District's ACCESS Coordinator, Schulz had worked under Anderson prior to the 2006-2007 school year while Anderson was the Supervisor of Special Services. (D 117.)

Two days later, Mancini began a series of meetings with various representatives of the Northwest Tri-county Intermediate Unit ("IU5") regarding MTSD's ACCESS billing. (D 97, 99, 100.) The parties disagree as to the purpose of these meetings. Defendants contend that Mancini's purpose in contacting IU5 was to engage an expert and experienced billing agent to serve as an impartial third party biller in light of Mancini's belief that MTSD had been billing ACCESS improperly. (D 98.) Anderson, on the other hand, maintains that Mancini's interaction with IU5 was intended only to address the problems that Mancini and her staff were having keeping 2006-2007 ACCESS billing organized and up to date, due to the absence of Schulz. (D 98, 99.)

On March 5, 2007 Mancini emailed Anderson concerning her belief that her department was understaffed in light of current needs. Mancini wrote that:

[m]uch of the ACCESS billing that has been done here in the past is not compliant with state guidelines so it [sic] there is no question about continuing it as is even if we had the staff to do it, which we don't. Additionally, the system Sandy [Schulz] used is dysfunctional and irreparable. The IU will take it over at great expense to us, or we can hire another full time secretary/clerical worker to do ACCESS after it's [sic] rebuilt here while Sandy is assigned to some of what MaryLou used to do when and if she returns. (D.A. 1054.)

At Mancini's request, five staff members from IU5 came to MTSD on March 7 and 8, 2007 to perform an ACCESS review prior to contracting with the District to assist in ACCESS billing. (D 103.) Among other things, the IU5 personnel found "[i]nactive ACCESS child files mixed in with active files," "[b]illing for services without a parent letter," and "[s]ervices not approved on Medical Authorization." (D.A. 913.)

On March 8, 2007, Mancini emailed Maynard regarding the status of the IU5's review and reported that: the IU had made progress but was unable to reconcile the ACCESS files in the two day review; the IU was laying the framework for reliable, compliant management of the billing process by cleaning up the files; most of the inappropriate students (about 100) for which the District had been billing had previously been removed but many still remained; the IU had discovered components for which the District had not been billing but could have been (such that the recovery of revenues for improperly billed and reimbursed services might be offset to some degree); and Mancini would like to continue with the plan to turn billing over to the IU as soon as possible. (D 105.) Maynard notified Mancini the following day that he supported the IU's continued involvement in completing their ACCESS review. (D 106.)

Accordingly, on March 13, 2007 two staff members from IU5 returned to MTSD to complete their review of the District's ACCESS billing. (D 107.) Subsequently, on April 23, 2007, IU5 entered into a 2007-2008 ACCESS Project Billing Agreement with MTSD whereby IU5 agreed to function as administrator for MTSD's ACCESS billing. (D 108.)

Attorney Perhacs' Investigation

On March 12, 2007, Maynard met with Richard Perhacs, an attorney with the law firm Knox, McLaughlin, Gornall & Sennett, P.C. (the "Knox Firm") and one of MTSD's solicitors. Among the matters discussed were Maynard's concerns about the ACCESS Program, including the use of ACCESS funds to purchase gift cards that were given out as staff incentives. (D 112, 114, 115, 116.) Maynard asked Perhacs to investigate the District's ACCESS Program and do "what was prudent to determine if something inappropriate was done relative to the accounting of the ACCESS program." (D 119, 120.)

That same day, Mancini and Schulz met with Perhacs as part of Perhacs' investigation. (D 123.) During this meeting, Schulz raised several issues concerning Anderson's administration of the program. (D 124.) Both Schulz and Mancini expressed concerns regarding the billing for ACCESS services as well as the spending of ACCESS funds. (D 126.)

In a March 19, 2007 memorandum addressed to the School Board President, Perhacs reported that, from the information presented to him, "it appears clear that almost from the inception of the Access Program approximately seven years ago, the District has been submitting for credit to its Access account various expenditures which were not appropriate." (D 128, D.A. 856.) According to Perhacs, "[a] significant amount of money [was] involved." Perhacs further reported that "when applications have been made for reimbursement of specific expenses from the credited account, likewise items were included which appear to have been inappropriate." (Id.)

Leader Services' QAR

On March 21, 2007, Mancini and Maynard met with Gloria Grego of Leader to discuss the District's ACCESS Program. (D 133.) Grego's memorandum summarizing the meeting confirms that she had concerns regarding the District's billing for Personal Care Assistant services and further notes that MTSD had historically been among the state's top ten school districts for receiving the most ACCESS revenue. (D 138.) In addition to Grego recommending that MTSD perform annual self-audits to ensure compliance, it was determined that Leader would schedule a Quality Assurance Review ("QAR") of MTSD's ACCESS Program. (D 138, 139.)

Eventually, it was agreed that Barbara Henry of Leader would perform the QAR on Tuesday, May 1, 2007. (D 140, 141, 142.) As part of her review, Henry examined 43 randomly selected records for 12 students for the school years 2005-2006 and 2006-2007. (D 144, D.A. 972-980.)

Leader subsequently issued a written report of the QAR, copies of which were sent to officials at the PDE and DPW. (D 147.) The Leader QAR report identified 10 of 32 program requirements and 28 overall records that were not in compliance with SBAP requirements. (D 150.) The report was accompanied by a July 2, 2007 cover letter authored by Grego and addressed to Mancini, wherein Grego states "it is imperative for the district to conduct self-audits to ensure compliance with the [SBAP] regulations." (D 149.)

A copy of the QAR, as noted, was sent to the DPE. This prompted a letter from John Tommasini, Director of PDE's Bureau of Special Education, to Mancini advising that, based on Leader's QAR, it was "evident" that Mancini's staff required additional training relative to SBAP billing and asking Mancini to involve Leader so as to ensure that the training would be "appropriate." (D 154, D.A. 967.)

Sullivan's Correspondence to the DPW and Auditor General

On May 3, 2007, Sullivan obtained a computer generated list of ACCESS billing for her son relative to the dates July 2000 through October 2006. (D 156.) The following day, Sullivan generated a letter (mailed on or about May 7) to the Pennsylvania DPW and the Department of Auditor General indicating that the School District may have billed medical assistance for services which Sullivan's son "did not receive and/or did not need." (D.A. 998.) In her letter, Sullivan represented that, over the previous five-year period, the District had billed some 592 hours for her son's personal care assistant at a cost of $16,197.50 -- services which Sullivan claimed were not required. (Id.) During three of the previous five years, Sullivan wrote, her son had had a Therapeutic Support Staff person provided to him by the Dr. Gertrude Barber National Institute and funded by medical assistance through the Barber Institute. (Id.)

MTSD's Referral to the Pennsylvania Auditor General

On May 8, 2007, the MTSD Board decided to halt Perhacs' internal investigation of the District's ACCESS Program and instead refer the matter to Commonwealth agencies. (D 160, 161.) The following day, Timothy Sennett, another Knox Firm attorney and MTSD solicitor, sent a letter to Pennsylvania Auditor General Jack Wagner indicating the School Board's concerns about MTSD's billing, reimbursement, and expenditure of ACCESS Funding for special education services from 2002 through 2006 and requesting that the Office of Auditor General undertake an audit and investigation of the ACCESS Program. (D 162.)

The May 14 CORE Team Meeting

On May 14, 2007, Mancini spoke with Grego and George Schneider, Executive Vice President of Leader Services. Grego advised Mancini that she had been in contact with DPW's Bureau of Program Integrity and that BPI would communicate directly with MTSD to set up an audit of the District's ACCESS billing. (D 163, 164.) Grego further advised that Leader was finalizing the amount that it would back out of MTSD's ACCESS account as a result of the past improper billing of three unlicensed speech therapists and one or two personal care assistants who had been working as interpreters -- discrepancies which had been identified during the May 1 QAR. (D 165.)

Meanwhile, members of the District's top-level administration were planning their weekly meeting (known as "CORE" Team" meetings) in which they would discuss issues of concern to the District. (D 166.) At the request of Maynard, the agenda for the May 14, 2007 CORE Team meeting included the following item: "MTSD ACCESS Billing by Department of Public Welfare Fraud Investigation Division." (D 167.)

During the course of this May 14 CORE meeting, and in response to questions asked by Anderson, Mancini provided the team with several basic pieces of information regarding the ongoing ACCESS billing issues, i.e.: (a) Leader's QAR had revealed improprieties, deficiencies or improper practices, (b) the QAR would be sent to PDE and DPW; (c) depending on the outcome, MTSD could be required to refund a significant amount of money; (d) DPW could prohibit the withdrawal of funds currently in MTSD's ACCESS account pending the outcome; and (e) further investigation would be forthcoming. (D 180.)

Defendants maintain that the phraseology of the CORE meeting agenda item, including reference to the word "fraud," was chosen because Mancini had recalled reference being made to DPW's "fraud investigation unit or division" during prior conversations with Grego and she understood that to be the division responsible for handling fraud, abuse or waste. (D 168.) Defendants further maintain that the purpose of placing the "MTSD ACCESS Billing" on the agenda was to convey that: (i) the QAR conducted by Leader on May 1 had revealed irregularities, (ii) Mancini had been informed that the results of the QAR would be forwarded to PDE and DPW's BPI, and (iii) further action was pending which could potentially have budget implications for the District. (D 169.) Anderson maintains that the agenda item falsely suggested that MTSD's ACCESS program was the subject of a state fraud investigation due to fund improprieties and that Anderson was personally being investigated. (P 80.)

Immediately after the May 14, 2007 CORE Team meeting, Anderson contacted Leader Services to inquire whether anyone there had stated that there were concerns regarding fraud involving MTSD's ACCESS program under her oversight. George Schneider from Leader informed Anderson that no one at Leader had suggested fraud in connection with the District's ACCESS Program, and Anderson so advised Maynard. After learning about Anderson's phone call to Leader, Mancini spoke with Schneider and informed him that the only individuals from MTSD with whom he should communicate in the future regarding ACCES were herself or Sennett. (Anderson Affid. ¶¶ 33-36.)

Mancini's Communications With DPW

On May 15, 2007, Grego sent an email to Mancini advising that she had spoken to Cherie Dininni of DPW's Bureau of Program Integrity and "explained the situation" at MTSD and that Dininni recommended MTSD follow DPW's procedures for a self-audit. (D 181.) Mancini subsequently spoke with Dininni and reported that, based upon the QAR results, as well as ongoing concerns about MTSD's ACCESS billing, Leader intended to back out the claims paid for speech therapy services that had been provided by unqualified individuals as well as claims for interpreter services that were in fact not interpreter services. (D 182.)

On May 18, 2007, Mancini sent a letter to DPW's Bureau of Program Integrity, with copies to Maynard and Board President Terry Scutella, requesting BPI's assistance to "review what we believe may be irregularities in the billing procedures that have been utilized by the district [regarding ACCESS] for perhaps as long as the past ten years." (D 187.) Specific concerns raised by Mancini in the May 18 letter included the misapplication of Personal Care Assistant guidelines, inaccurate reporting for the use of draw down expenditures, the use of ACCESS funds to purchase gift cards that were used as rewards for billing staff, lack of documentation regarding gift card accountability and distribution, and provider qualifications for billing. (D 188.) Mancini's letter was reviewed and approved by Maynard before it was sent. (D 189.)

Mancini's Communications With PDE

On June 4, 2007, Mancini sent an email to Roni Russell, Educational Consultant for the Pennsylvania Department of Eduction's PA Training and Technical Assistance Network, inquiring whether the District could draw down approximately $220,000 from the District's ACCESS account for two special education-related projects in light of the inquiry into the District's ACCESS billing procedures. (D 190.) Russell emailed Mancini on June 13, stating that Mancini needed to put the District's request in writing to John Tommasini, Director of PDE's Bureau of Special Education. (D 191.)

Mancini did so on June 18. In her letter requesting permission to draw down $220,000 from the District's ACCESS account, Mancini stated, "[t]here is a substantial amount of money accumulated in [the account], which is currently the subject of an inquiry as to past billing procedures." (D 192, 193.)

Tommasini responded by letter dated June 20, 2007, in which he stated, "At this time, it is not prudent to allow the [District] to withdraw the school-based ACCESS monies for the above-mentioned use due to the current audit inquiry of past billing procedures. Once the audit is complete, you may re-submit the request for withdrawing those funds." (D 196.) Mancini understood this response to mean that MTSD would not be permitted to withdraw funds from its ACCESS account until the audit of MTSD's past billing procedures was completed. (D 197.)

Investigations by DPW and Auditor General

Beginning in the summer of 2007, the District's ACCESS Program was under review by several outside agencies. According to a June 14, 2007 memorandum generated by Attorney Sennett, George Schneider of Leader Services had indicated to Sennett following a "spot check" of MTSD's ACCESS documentation that there may be issues concerning the certification of speech therapists and additional issues regarding personal care assistance. (D 203, D.A. 1023.) Schneider had also advised Sennett that there was some concern about "cookie cutter IEPS" and allegations that District representatives had told parents to "just sign the document otherwise the child does not receive the services." (D 204, D.A. 1023.)

According to Sennett's memorandum, Schneider had been advised by a representative of DPW's Bureau of Program Integrity that BPI had opened a file as a result of Sullivan's complaint. (D 205, D.A. 1023.) On June 5, 2007, Mancini complied with a request for documents made by a BPI representative. (D 201.) Among the documents requested by BPI and provided by Mancini were a sample letter dated November 22, 2004 providing gift cards to district Special Education teachers and an email regarding the purchase and dissemination of gift cards purchased with ACCESS funds. (D.A. 981.)

By letter dated July 27, 2007 Sennett was advised by Jeffrey H. Gribb, Director of the Office of Special Investigations, Pennsylvania Department of the Auditor General that the District's May 9, 2007 letter to Auditor General Jack Wagner had been received, the Bureau of School Audits would expand its current audit to include travel expenses, and the Office of Special Investigations would be investigating "allegations into the use of ACCESS funds that are not subject to the examination currently being conducted by [DPW's] Bureau of Program Integrity." (D 206.) Beginning in the summer of 2007 and continuing into June of 2008, investigators from the Pennsylvania Auditor General's Office of Special Investigation made regular visits to MTSD in order to examine records and interview witnesses. (D 207.)

On August 7, 2007, the Director of DPW's Bureau of Program Integrity wrote Maynard to advise that BPI was "currently reviewing paid claims" for SBAP services that were billed to the Medical Assistance Program by MTSD. (D 208.) The letter directed the District to turn over complete ACCESS records for 226 Medical Assistance recipients for dates of service from August 1, 2005 through June 30, 2007. (D 209.)

These outside agencies continued their activities into 2008, prompting Sennett to send letters to the BPI, the Pennsylvania Department of Auditor General, and the OSI inquiring of the status of their investigations. (D 215, 216, 217.) On June 23, 2008, Sennett was advised by Gribb that OSI was working with the U.S. Department of Education Inspector General's Office in regard to ACCESS funds and gift cards, that several people were being investigated for wrongdoing, that he hoped the investigation would be concluded within six months, but that a report would not be issued until the U.S. Department of Education approved doing so. (D 218.)

During the fall of 2008 and into early 2009, Connie Murray, Special Agent with the U.S. Department of Health and Human Services, interviewed several employees of MTSD relative to ACCESS, including Mancini and Anderson. (D 219.) On February 24, 2009, Anderson was interviewed for over five hours by agents from the PA Department of Auditor General, the U.S. Department of Health and Human Services, and the U.S. Department of Education. (D 220.)

The Response From the Department of Justice

On April 6, 2009, Sennett received correspondence from the U.S. Department of Justice concerning the joint federal and state investigation into MTSD's handling of the ACCESS program. (D 221.) In this correspondence, the Assistant U.S. Attorney handling the matter found that "the results [of the investigation were], to say the least, troubling." (D 222, D.A. 1500.) The AUSA advised that the ACCESS claims under examination "fail[ed] for a variety of reasons, including (but not limited to) claiming reimbursement for services provided to absent students, claiming reimbursement for services provided on holidays, claiming reimbursement for services provided over lengths of time above and beyond authorized time frames, and claiming reimbursement for services that are not entitled to reimbursement." (D 223, D.A. 1500.) He invited the District to discuss the matter with an eye toward settlement, as the District's potential exposure in any civil action stemming from the investigation would be "substantial." (D 224, D.A. 1500-1501.)

The Auditor General's May 18, 2012 Report

On May 18, 2012, the Pennsylvania Department of the Auditor General published its report concerning its investigation into MTSD's use of SBAP funds. As set forth in the report, the AG's Office of Special Investigation found the following:

 The Millcreek Township School District's former Supervisor of Special

Services [i.e., Anderson] diverted $91,873 from the District's special education program by purchasing gift cards with special education funds and using the gift cards for non-program purposes.

 Millcreek Township School District is unable to account for $341,140 of School-Based ACCESS Program funds that it received during the three-year period ending June 30, 2006.  Two Millcreek ...


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