II 

111TH CONGRESS 

1ST SESSION S. 1581 

To improve the amendments made by the No Child Left Behind Act of 

2001. 

IN THE SENATE OF THE UNITED STATES 

AUGUST 5, 2009 

Mr. CRAPO (for himself and Mrs. LINCOLN) introduced the following bill; 

which was read twice and referred to the Committee on Health, Education, Labor, and Pensions 

A BILL 

To improve the amendments made by the No Child Left 

Behind Act of 2001. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Enhancing Flexibility 

5 for Effective Schools Act’’. 

6 SEC. 2. REFERENCES. 

7 Except as otherwise specifically provided, whenever in 

8 this Act an amendment or repeal is expressed in terms 

9 of an amendment to, or a repeal of, a section or other 

10 provision, the reference shall be considered to be made to 


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1 a section or other provision of the Elementary and Sec2 ondary Education Act of 1965 (20 U.S.C. 6301 et seq.). 

3 SEC. 3. ADEQUATE YEARLY PROGRESS. 

4 (a) ACCOUNTABILITY.—Section 1111(b)(2) (20 

5 U.S.C. 6311(b)(2)) is amended— 

6 (1) in subparagraph (I)(ii)— 

7 (A) by striking ‘‘95 percent’’ the first place 

8 the term appears and inserting ‘‘90 percent 

9 (which percentage shall be based on criteria es10 tablished by the State in the State plan)’’; and 

11 (B) by striking ‘‘95 percent’’ the second 

12 place the term appears and inserting ‘‘90 per13 cent’’; 

14 (2) by redesignating subparagraph (K) as sub15 paragraph (N); and 

16 (3) by inserting, after subparagraph (J), the 

17 following: 

18 ‘‘(K) SINGLE COUNT OF STUDENTS.—In 

19 meeting the definition of adequate yearly 

20 progress under subparagraph (C), a student 

21 who may be counted in 2 or more groups de22 scribed in subparagraph (C)(v)(II), may be 

23 counted as an equal fraction of 1 for each such 

24 group. 


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1 ‘‘(L) STUDENTS WITH DISABILITIES RE2 QUIRING ALTERNATE ASSESSMENTS.—Notwith3 standing any other provision of this part, a 

4 State may implement the amendments made to 

5 part 200 of title 34, Code of Federal Regula6 tions on December 9, 2003 (68 Fed. Reg. 

7 68698) (related to achievement of students with 

8 significant cognitive disabilities), as if such 

9 amendments— 

10 ‘‘(i) permitted the proficient or ad11 vanced scores on alternate assessments of 

12 not more than 3.0 percent of all tested stu13 dents to be considered as proficient or ad14 vanced, respectively, for the purposes of 

15 determining adequate yearly progress, ex16 cept that— 

17 ‘‘(I) any assessment given to any 

18 such so considered student for the 

19 purposes of determining such ade20 quate yearly progress shall be re21 quired by the individualized education 

22 program of such so considered stu23 dent; 

24 ‘‘(II) the individualized education 

25 program shall reflect the need for any 


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1 such alternate assessment based on 

2 the evaluation of such so considered 

3 student and the services provided such 

4 so considered student under section 

5 614 of the Individuals with Disabil6 ities Education Act; and 

7 ‘‘(III) the individualized edu8 cation program shall include written 

9 consent from the parent of such so 

10 considered student prior to such alter11 nate assessment being administered; 

12 ‘‘(ii) used the term ‘students requiring 

13 alternate assessments’ in lieu of the term 

14 ‘students with the most significant cog15 nitive disabilities’; and 

16 ‘‘(iii) permitted the eligibility, of such 

17 so considered students to have the stu18 dents’ scores of proficient or advanced on 

19 alternate assessments counted as proficient 

20 or advanced for purposes of determining 

21 adequate yearly progress, to be determined 

22 by the State educational agency, except 

23 that such eligibility shall, at a minimum, 

24 include— 


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1 ‘‘(I) such so considered students 

2 who are receiving services pursuant to 

3 a plan required under section 504 of 

4 the Rehabilitation Act of 1973; 

5 ‘‘(II) the students described in 

6 subclause (I) who are assessed at a 

7 grade level below the grade level in 

8 which the students are enrolled (out 

9 of level assessments); and 

10 ‘‘(III) the students described in 

11 subclause (I) who are considered stu12 dents with the most significant cog13 nitive disabilities, as defined by the 

14 State educational agency, on the day 

15 before the date of enactment of the 

16 Enhancing Flexibility for Effective 

17 Schools Act. 

18 ‘‘(M) OTHER MEASURES OF ADEQUATE

19 YEARLY PROGRESS.—Notwithstanding any 

20 other provision of this paragraph, a State may 

21 establish in the State plan an alternative defini22 tion of adequate yearly progress, subject to ap23 proval by the Secretary under subsection (e). 

24 Such alternative definition may— 


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1 ‘‘(i) include measures of student 

2 achievement over a period of time (such as 

3 a growth model or value added account4 ability system) or the progress of some or 

5 all of the groups of students described in 

6 subparagraph (C)(v) to the next higher 

7 level of achievement described in subpara8 graph (II) or (III) of paragraph (1)(D)(ii) 

9 as a factor in determining whether a 

10 school, local educational agency, or State 

11 has made adequate yearly progress, as de12 scribed in this paragraph; or 

13 ‘‘(ii) use the measures of achievement 

14 or the progress of groups described in 

15 clause (i) as the sole basis for determining 

16 whether the State, or a local educational 

17 agency or school within the State, has 

18 made adequate yearly progress, if— 

19 ‘‘(I) the primary goal of such 

20 definition is that all students in each 

21 group described in subparagraph 

22 (C)(v) meet or exceed the proficient 

23 level of academic achievement, estab24 lished by the State, not later than 12 


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1 years after the end of the 2001–2002 

2 school year; and 

3 ‘‘(II) such definition includes in4 termediate goals, as required under 

5 subparagraph (H).’’. 

6 (b) ASSESSMENTS.—Section 1111(b)(3)(C) (20 

7 U.S.C. 6311(b)(3)(C)) is amended— 

8 (1) in clause (ix), by striking subclause (III) 

9 and inserting the following: 

10 ‘‘(III) the inclusion of limited 

11 English proficient students, who— 

12 ‘‘(aa) may, consistent with 

13 paragraph (2)(M), be assessed, 

14 as determined by the local edu15 cational agency, through the use 

16 of an assessment which requires 

17 achievement of specific gains for 

18 up to 3 school years from the 

19 first year the student is assessed 

20 for the purposes of this sub21 section; 

22 ‘‘(bb) may, at the option of 

23 the State educational agency, be 

24 assessed in the first year the stu25 dent attends school in the United 


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1 States (not including the Com2 monwealth of Puerto Rico); and 

3 ‘‘(cc) shall not be included 

4 in any calculation of an adequate 

5 yearly progress determination 

6 when the student is in the first 

7 year of attendance at a school in 

8 the United States (not including 

9 the Commonwealth of Puerto 

10 Rico).’’; and 

11 (2) in clause (x), by inserting ‘‘of clause (ix)’’ 

12 after ‘‘subclause (III)’’. 

13 (c) REGULATIONS AFFECTING LIMITED ENGLISH

14 PROFICIENT CHILDREN AND CHILDREN WITH DISABIL15 ITIES.—Section 1111 (20 U.S.C. 6311) is amended by 

16 adding at the end the following: 

17 ‘‘(n) CODIFICATION OF REGULATIONS AFFECTING

18 LIMITED ENGLISH PROFICIENT CHILDREN.—Notwith19 standing any other provision of this part, this part shall 

20 be implemented consistent with the amendments proposed 

21 to part 200 of title 34 of the Code of Federal Regulations 

22 on June 24, 2004 (69 Fed. Reg. 35462) (relating to the 

23 assessment of limited English proficient children and the 

24 inclusion of limited English proficient children in sub25 groups), as if such amendments permitted students who 


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1 were previously identified as limited English proficient to 

2 be included in the group described in subsection 

3 (b)(2)(C)(v)(II)(dd) for 3 additional years, as determined 

4 by a local educational agency (based on the individual 

5 needs of a child) for the purposes of determining adequate 

6 yearly progress.’’. 

7 SEC. 4. SCHOOL IMPROVEMENT AND PUBLIC SCHOOL 

8 CHOICE. 

9 Section 1116(b) (20 U.S.C. 6316(b)) is amended— 

10 (1) in paragraph (1)— 

11 (A) in subparagraph (A), by inserting ‘‘(in 

12 the same subject for the same group of stu13 dents, as described in section 

14 1111(b)(2)(C)(v))’’ after ‘‘2 consecutive years’’; 

15 (B) in subparagraph (E)(i)— 

16 (i) by striking ‘‘In the case’’ and in17 serting ‘‘Except as provided in subpara18 graph (G), in the case’’; and 

19 (ii) by striking ‘‘all students enrolled 

20 in the school with the option to transfer to 

21 another public school’’ and inserting ‘‘stu22 dents who failed to meet the proficient 

23 level of achievement on the assessments de24 scribed in section 1111(b)(3), are enrolled 

25 in the school, and are in the group whose 


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1 academic performance caused the identi2 fication under this paragraph, with the op3 tion to transfer to one other public school 

4 identified by and’’; and 

5 (C) by adding at the end the following: 

6 ‘‘(G) OPTIONS.—A local educational agen7 cy may offer supplemental educational services 

8 as described in subsection (e) in place of the op9 tion to transfer to another public school de10 scribed in subparagraph (E), for the first school 

11 year a school is identified for improvement 

12 under this paragraph.’’; 

13 (2) in the matter preceding subparagraph (A) 

14 of paragraph (5), by inserting ‘‘for the same group 

15 of students’’ after ‘‘adequate yearly progress’’; and 

16 (3) in the matter preceding clause (i) of para17 graph (7)(C), by inserting ‘‘for the same group of 

18 students’’ after ‘‘adequate yearly progress’’. 

19 SEC. 5. SUPPLEMENTAL EDUCATIONAL SERVICES. 

20 Section 1116(e)(4) (20 U.S.C. 6316(e)(4)) is amend21 ed— 

22 (1) in subparagraph (B), by inserting ‘‘(devel23 oped through consultation with local educational 

24 agencies in the State)’’ after ‘‘objective criteria’’; 


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1 (2) in subparagraph (D), by striking ‘‘and’’ 

2 after the semicolon; 

3 (3) in subparagraph (E), by striking the period 

4 and inserting at the end ‘‘; and’’; and 

5 (4) by adding at the end the following: 

6 ‘‘(F) develop procedures by which a local 

7 educational agency may— 

8 ‘‘(i) present complaints, and docu9 mentation of such complaints, to the State 

10 educational agency regarding the qualifica11 tion, operation, and evaluation— 

12 ‘‘(I) of approved providers; and 

13 ‘‘(II) providers of supplemental 

14 educational services seeking to become 

15 approved providers under this sub16 section; and 

17 ‘‘(ii) demonstrate to the State edu18 cational agency that a provider of supple19 mental educational services should not be 

20 approved to provide supplemental edu21 cational services under this subsection to 

22 any students attending the schools served 

23 by the local educational agency.’’. 


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1 SEC. 6. FLEXIBILITY FOR SPECIAL EDUCATION MIDDLE OR 

2 SECONDARY SCHOOL TEACHERS. 

3 Section 9101(23)(B)(ii) (20 U.S.C. 7801(23)(B)(ii)) 

4 is amended— 

5 (1) in subclause (I), by striking ‘‘or’’ after the 

6 semicolon; 

7 (2) in subclause (II), by striking ‘‘; and’’ and 

8 inserting ‘‘; or’’; and 

9 (3) by adding at the end the following: 

10 ‘‘(III) in the case of a special 

11 education teacher, obtaining a State 

12 special education certificate that 

13 qualifies the teacher to teach special 

14 education in the State; and’’. 

Æ 


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