A bill to improve the amendments made by the No Child Left Behind Act of 2001.

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Enhancing Flexibility for Effective 
Schools Act''.

SEC. 2. REFERENCES.

    Except as otherwise specifically provided, whenever in this Act an 
amendment or repeal is expressed in terms of an amendment to, or a 
repeal of, a section or other provision, the reference shall be 
considered to be made to a section or other provision of the Elementary 
and Secondary Education Act of 1965 (20 U.S.C. 6301 et seq.).

SEC. 3. ADEQUATE YEARLY PROGRESS.

    (a) Accountability.--Section 1111(b)(2) (20 U.S.C. 6311(b)(2)) is 
amended--
            (1) in subparagraph (I)(ii)--
                    (A) by striking ``95 percent'' the first place the 
                term appears and inserting ``90 percent (which 
                percentage shall be based on criteria established by 
                the State in the State plan)''; and
                    (B) by striking ``95 percent'' the second place the 
                term appears and inserting ``90 percent'';
            (2) by redesignating subparagraph (K) as subparagraph (N); 
        and
            (3) by inserting, after subparagraph (J), the following:
                    ``(K) Single count of students.--In meeting the 
                definition of adequate yearly progress under 
                subparagraph (C), a student who may be counted in 2 or 
                more groups described in subparagraph (C)(v)(II), may 
                be counted as an equal fraction of 1 for each such 
                group.
                    ``(L) Students with disabilities requiring 
                alternate assessments.--Notwithstanding any other 
                provision of this part, a State may implement the 
                amendments made to part 200 of title 34, Code of 
                Federal Regulations on December 9, 2003 (68 Fed. Reg. 
                68698) (related to achievement of students with 
                significant cognitive disabilities), as if such 
                amendments--
                            ``(i) permitted the proficient or advanced 
                        scores on alternate assessments of not more 
                        than 3.0 percent of all tested students to be 
                        considered as proficient or advanced, 
                        respectively, for the purposes of determining 
                        adequate yearly progress, except that--
                                    ``(I) any assessment given to any 
                                such so considered student for the 
                                purposes of determining such adequate 
                                yearly progress shall be required by 
                                the individualized education program of 
                                such so considered student;
                                    ``(II) the individualized education 
                                program shall reflect the need for any 
                                such alternate assessment based on the 
                                evaluation of such so considered 
                                student and the services provided such 
                                so considered student under section 614 
                                of the Individuals with Disabilities 
                                Education Act; and
                                    ``(III) the individualized 
                                education program shall include written 
                                consent from the parent of such so 
                                considered student prior to such 
                                alternate assessment being 
                                administered;
                            ``(ii) used the term `students requiring 
                        alternate assessments' in lieu of the term 
                        `students with the most significant cognitive 
                        disabilities'; and
                            ``(iii) permitted the eligibility, of such 
                        so considered students to have the students' 
                        scores of proficient or advanced on alternate 
                        assessments counted as proficient or advanced 
                        for purposes of determining adequate yearly 
                        progress, to be determined by the State 
                        educational agency, except that such 
                        eligibility shall, at a minimum, include--
                                    ``(I) such so considered students 
                                who are receiving services pursuant to 
                                a plan required under section 504 of 
                                the Rehabilitation Act of 1973;
                                    ``(II) the students described in 
                                subclause (I) who are assessed at a 
                                grade level below the grade level in 
                                which the students are enrolled (out of 
                                level assessments); and
                                    ``(III) the students described in 
                                subclause (I) who are considered 
                                students with the most significant 
                                cognitive disabilities, as defined by 
                                the State educational agency, on the 
                                day before the date of enactment of the 
                                Enhancing Flexibility for Effective 
                                Schools Act.
                    ``(M) Other measures of adequate yearly progress.--
                Notwithstanding any other provision of this paragraph, 
                a State may establish in the State plan an alternative 
                definition of adequate yearly progress, subject to 
                approval by the Secretary under subsection (e). Such 
                alternative definition may--
                            ``(i) include measures of student 
                        achievement over a period of time (such as a 
                        growth model or value added accountability 
                        system) or the progress of some or all of the 
                        groups of students described in subparagraph 
                        (C)(v) to the next higher level of achievement 
                        described in subparagraph (II) or (III) of 
                        paragraph (1)(D)(ii) as a factor in determining 
                        whether a school, local educational agency, or 
                        State has made adequate yearly progress, as 
                        described in this paragraph; or
                            ``(ii) use the measures of achievement or 
                        the progress of groups described in clause (i) 
                        as the sole basis for determining whether the 
                        State, or a local educational agency or school 
                        within the State, has made adequate yearly 
                        progress, if--
                                    ``(I) the primary goal of such 
                                definition is that all students in each 
                                group described in subparagraph (C)(v) 
                                meet or exceed the proficient level of 
                                academic achievement, established by 
                                the State, not later than 12 years 
                                after the end of the 2001-2002 school 
                                year; and
                                    ``(II) such definition includes 
                                intermediate goals, as required under 
                                subparagraph (H).''.
    (b) Assessments.--Section 1111(b)(3)(C) (20 U.S.C. 6311(b)(3)(C)) 
is amended--
            (1) in clause (ix), by striking subclause (III) and 
        inserting the following:
                                    ``(III) the inclusion of limited 
                                English proficient students, who--
                                            ``(aa) may, consistent with 
                                        paragraph (2)(M), be assessed, 
                                        as determined by the local 
                                        educational agency, through the 
                                        use of an assessment which 
                                        requires achievement of 
                                        specific gains for up to 3 
                                        school years from the first 
                                        year the student is assessed 
                                        for the purposes of this 
                                        subsection;
                                            ``(bb) may, at the option 
                                        of the State educational 
                                        agency, be assessed in the 
                                        first year the student attends 
                                        school in the United States 
                                        (not including the Commonwealth 
                                        of Puerto Rico); and
                                            ``(cc) shall not be 
                                        included in any calculation of 
                                        an adequate yearly progress 
                                        determination when the student 
                                        is in the first year of 
                                        attendance at a school in the 
                                        United States (not including 
                                        the Commonwealth of Puerto 
                                        Rico).''; and
            (2) in clause (x), by inserting ``of clause (ix)'' after 
        ``subclause (III)''.
    (c) Regulations Affecting Limited English Proficient Children and 
Children With Disabilities.--Section 1111 (20 U.S.C. 6311) is amended 
by adding at the end the following:
    ``(n) Codification of Regulations Affecting Limited English 
Proficient Children.--Notwithstanding any other provision of this part, 
this part shall be implemented consistent with the amendments proposed 
to part 200 of title 34 of the Code of Federal Regulations on June 24, 
2004 (69 Fed. Reg. 35462) (relating to the assessment of limited 
English proficient children and the inclusion of limited English 
proficient children in subgroups), as if such amendments permitted 
students who were previously identified as limited English proficient 
to be included in the group described in subsection 
(b)(2)(C)(v)(II)(dd) for 3 additional years, as determined by a local 
educational agency (based on the individual needs of a child) for the 
purposes of determining adequate yearly progress.''.

SEC. 4. SCHOOL IMPROVEMENT AND PUBLIC SCHOOL CHOICE.

    Section 1116(b) (20 U.S.C. 6316(b)) is amended--
            (1) in paragraph (1)--
                    (A) in subparagraph (A), by inserting ``(in the 
                same subject for the same group of students, as 
                described in section 1111(b)(2)(C)(v))'' after ``2 
                consecutive years'';
                    (B) in subparagraph (E)(i)--
                            (i) by striking ``In the case'' and 
                        inserting ``Except as provided in subparagraph 
                        (G), in the case''; and
                            (ii) by striking ``all students enrolled in 
                        the school with the option to transfer to 
                        another public school'' and inserting 
                        ``students who failed to meet the proficient 
                        level of achievement on the assessments 
                        described in section 1111(b)(3), are enrolled 
                        in the school, and are in the group whose 
                        academic performance caused the identification 
                        under this paragraph, with the option to 
                        transfer to one other public school identified 
                        by and''; and
                    (C) by adding at the end the following:
                    ``(G) Options.--A local educational agency may 
                offer supplemental educational services as described in 
                subsection (e) in place of the option to transfer to 
                another public school described in subparagraph (E), 
                for the first school year a school is identified for 
                improvement under this paragraph.'';
            (2) in the matter preceding subparagraph (A) of paragraph 
        (5), by inserting ``for the same group of students'' after 
        ``adequate yearly progress''; and
            (3) in the matter preceding clause (i) of paragraph (7)(C), 
        by inserting ``for the same group of students'' after 
        ``adequate yearly progress''.

SEC. 5. SUPPLEMENTAL EDUCATIONAL SERVICES.

    Section 1116(e)(4) (20 U.S.C. 6316(e)(4)) is amended--
            (1) in subparagraph (B), by inserting ``(developed through 
        consultation with local educational agencies in the State)'' 
        after ``objective criteria'';
            (2) in subparagraph (D), by striking ``and'' after the 
        semicolon;
            (3) in subparagraph (E), by striking the period and 
        inserting at the end ``; and''; and
            (4) by adding at the end the following:
                    ``(F) develop procedures by which a local 
                educational agency may--
                            ``(i) present complaints, and documentation 
                        of such complaints, to the State educational 
                        agency regarding the qualification, operation, 
                        and evaluation--
                                    ``(I) of approved providers; and
                                    ``(II) providers of supplemental 
                                educational services seeking to become 
                                approved providers under this 
                                subsection; and
                            ``(ii) demonstrate to the State educational 
                        agency that a provider of supplemental 
                        educational services should not be approved to 
                        provide supplemental educational services under 
                        this subsection to any students attending the 
                        schools served by the local educational 
                        agency.''.

SEC. 6. FLEXIBILITY FOR SPECIAL EDUCATION MIDDLE OR SECONDARY SCHOOL 
              TEACHERS.

    Section 9101(23)(B)(ii) (20 U.S.C. 7801(23)(B)(ii)) is amended--
            (1) in subclause (I), by striking ``or'' after the 
        semicolon;
            (2) in subclause (II), by striking ``; and'' and inserting 
        ``; or''; and
            (3) by adding at the end the following:
                                    ``(III) in the case of a special 
                                education teacher, obtaining a State 
                                special education certificate that 
                                qualifies the teacher to teach special 
                                education in the State; and''.

Summary: Enhancing Flexibility for Effective Schools Act - Amends the Elementary and Secondary Education Act of 1965 to alter requirements for adequate yearly progress (AYP) assessments of student groups by: (1) lowering, from 95 to 90, the minimum percentage of students in each group in a school that must take such assessments. (2) allowing the fractional counting of students who are in more than one group, for each such group. (3) allowing states to treat as proficient or advanced specified scores on alternate assessments for disabled students and those not proficient in English. And (4) allowing states to use alternative methods of defining AYP. Revises criteria for local educational agency (LEA) identification of schools needing improvement. Declares that only those meet such criteria that fail AYP standards, for two consecutive school years , in the same subject for the same group of students. Revises eligibility criteria for school transfers after a school is identified as needing improvement. Declares that only failing students in the failing group, instead of all students in such a school, may transfer. Allows such schools to provide students with supplemental services rather than transfers during that school year. Requires states to develop procedures allowing LEAs to register complaints concerning approved supplemental service providers or those seeking the state's approval. Considers new middle or secondary school special education teachers to be highly qualified if, in addition to having a bachelor degree and high competence in their subject area, they have obtained a state special education certificate qualifying them to teach in the state.