‘‘(II) if such student does not 
meet the proficient level of achieve-
ment for such proceeding grade level, 
such score is not used for the pur-
poses of determining adequate yearly 
progress; and’’. 
SEC. 107. REGULATIONS. 
Section 1111 (20 U.S.C. 6311) is further amended 
by adding at the end the following: 
‘‘(o) REGULATIONS.— 
‘‘(1) CODIFICATION OF REGULATIONS AFFECT-
ING
LIMITED
ENGLISH
PROFICIENT
CHILDREN.— 
This part shall be implemented consistent with 
amendments proposed to part 200 of title 34, 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 lim-
ited English proficient children in subgroups) as if 
such amendments permitted students who were pre-
viously identified as limited English proficient to be 
included in the group described in subsection 
(b)(2)(C)(v)(II)(dd) for three 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. 
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‘‘(2) ISSUANCE
OF
REGULATIONS
AFFECTING 
CHILDREN WITH DISABILITIES.—The Secretary shall 
issue regulations not later than 180 days after the 
date of the enactment of the No Child Left Behind 
Improvements Act of 2006 regarding the participa-
tion of children with disabilities under this part. 
Such regulations shall permit a State to include, for 
up to three years, students who were children with 
disabilities as part of the group described under sec-
tion 1111(b)(2)(C)(v)(II)(cc) but who are no longer 
identified as children with disabilities. Students with 
disabilities may be provided an alternate assessment, 
including an out of level assessment, if deemed ap-
propriate by the individual education plan team for 
that student and included within the written indi-
vidual education plan for that student.’’. 
TITLE II—STATE FLEXIBILITY 
SEC. 201. STATE FLEXIBILITY. 
Section 1111 (20 U.S.C. 6311) is amended— 
(1) by redesignating subsections (f) through 
(m) as subsections (g) through (n); and 
(2) by inserting after subsection (e) the fol-
lowing: 
‘‘(f) STATE FLEXIBILITY.— 
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‘‘(1) PLANS.—In approving plans under sub-
section (e), the Secretary shall accord a State max-
imum flexibility to make such plans and any revi-
sions compatible with the accountability system of 
such State. 
‘‘(2) WAIVERS.—Through the authority pro-
vided under part D of title IX, the Secretary may 
grant a waiver of any statutory or regulatory re-
quirement of this part requested by a State edu-
cational agency or local educational agency. 
‘‘(3) NOTIFICATION.—Not later than 30 days 
after the approval of any revisions to the plan of a 
State, or the granting of any waivers described 
under paragraph (2), the Secretary shall notify each 
State educational agency of such revision or waiver 
and, through the website of the Department of Edu-
cation and the Federal Register, the public. The no-
tification described in the preceding sentence shall 
be in writing and include a clear and complete expla-
nation of such revision or wavier. 
‘‘(4) APPLICABILITY OF PLAN REVISIONS AND 
WAIVERS
TO
OTHER
AGENCIES.—A revision to a 
plan approved under this part or a waiver issued 
under this subsection or under part D of title IX 
may be applied in any other State or local edu-
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cational agency, provided the State or agency meets 
any requirements issued by the Secretary applicable 
to such revision or waiver as implemented by such 
State or agency.’’. 
TITLE III—IMPLEMENTATION OF 
SANCTIONS 
SEC. 301. SCHOOL IMPROVEMENT AND PUBLIC SCHOOL 
CHOICE. 
Section 1116(b) (20 U.S.C. 6316(b)) is amended— 
(1) in paragraph (1)(A) by inserting after ‘‘2 
consecutive years’’ the following: ‘‘(in the same sub-
ject for the same group of students, as described in 
section 1111(b)(2)(C)(v))’’; 
(2) in paragraph (1)(E)(i)— 
(A) by striking ‘‘In the case’’ and inserting 
‘‘Consistent with subparagraph (G), in the 
case’’; 
(B) by striking ‘‘all students enrolled in 
the school’’ and inserting ‘‘students who failed 
to meet the proficient level of achievement on 
the 
assessments 
described 
under 
section 
1111(b)(3) and are in the group whose aca-
demic performance caused the identification 
under this paragraph’’; and 
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(C) by striking ‘‘another public school’’ 
and inserting ‘‘one other public school identified 
and’’; 
(3) in paragraph (1)(E) by adding at the end 
the following: 
‘‘(iii) SPECIAL CONDITIONS.—A local 
educational agency shall not be required to 
implement the transfer of a student to a 
school under this subparagraph if doing so 
would— 
‘‘(I) violate a State or local law 
or policy relating to health, safety, or 
class size; 
‘‘(II) result in overcrowding, the 
installation of mobile classrooms, con-
struction of classrooms, or other sig-
nificant capital improvements in that 
school; or 
‘‘(III) be impractical due to dis-
tance, geographical barriers or haz-
ards, time of travel, or unusually high 
cost of travel.’’; and 
(4) in paragraph (1) by adding at the end the 
following: 
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‘‘(G) OPTIONS.—A local educational agen-
cy may offer supplemental services as described 
in subsection (e) in place of the option to trans-
fer to one or more public schools described in 
subparagraph (E) for the purposes of meeting 
the 
requirements 
of 
paragraphs 
(5)(A), 
(7)(C)(i), or (8)(A)(i).’’; 
(5) in paragraph (5) by inserting after ‘‘ade-
quate yearly progress’’ the following: ‘‘(in the same 
subject for the same group of students)’’; 
(6) in paragraph (7)(C) by inserting after ‘‘ade-
quate yearly progress’’ the following: ‘‘(in the same 
subject for the same group of students)’’; 
(7) in paragraph (7)(C)(i)— 
(A) by striking ‘‘all’’; and 
(B) by striking ‘‘another’’ and inserting 
‘‘an other’’; 
(8) in paragraph (7) by amending subpara-
graph (D) to read as follows: 
‘‘(D) DELAY.—Notwithstanding any other 
provision of this paragraph, the local edu-
cational agency may delay, for a period not to 
exceed 1 year, implementation of the require-
ments under paragraph (5), corrective action 
under this paragraph, or restructuring under 
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paragraph (8) if the school makes adequate 
yearly progress for 1 year or if its failure to 
make adequate yearly progress is due to— 
‘‘(i) exceptional or uncontrollable cir-
cumstances, such as a natural disaster; 
‘‘(ii) a precipitous and unforeseen de-
cline in the financial resources of the local 
educational agency or school; or 
‘‘(iii) a sudden or significant increase 
in the number of percentage of students 
represented by a group described in section 
1111(b)(2)(C)(v). 
No such period shall be taken into account in 
determining the number of consecutive years of 
failure to make adequate yearly progress.’’; 
(9) in paragraph (8)(A) by inserting after ‘‘ade-
quate yearly progress’’ the following: ‘‘in the same 
subject for the same group of students and the total 
number of students who did not meet or exceed the 
proficient level of academic achievement (who are 
members 
of 
a 
group 
described 
in 
section 
1111(b)(2)(C)(v)) exceed 35 percent of all students 
enrolled in such school who took the assessment in 
such subject’’; 
(10) in paragraph (8)(A)(i)— 
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(A) by striking ‘‘all’’; and 
(B) by striking ‘‘another’’ and inserting 
‘‘an other’’; and 
(11) in paragraph (13) by striking ‘‘is no longer 
identified’’ and all that follows through the period at 
the end and inserting the following: ‘‘has made ade-
quate yearly progress for the group in which the 
child is a member in the same subject for which a 
failure to meet adequate yearly progress triggered 
the transfer.’’. 
SEC. 302. SCHOOL DISTRICT IMPROVEMENT. 
Section 1116(c)(10) (20 U.S.C. 6316(c)(10)) is 
amended— 
(1) in subparagraph (B) by amending clause 
(ii) to read as follows: 
‘‘(ii) shall take corrective action with 
respect to a local educational agency— 
‘‘(I) that fails to make adequate 
yearly progress, as defined by the 
State, in the same subject and aver-
aged across all grades and in at least 
one grade span (as determined by the 
State) for a group described in section 
1111(b)(2)(C)(v) by the end of the 
second full school year after the iden-
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tification of such agency under para-
graph (3); and 
‘‘(II) whose total number of stu-
dents (who are members of a group 
described in section 1111(b)(2)(C)(v)) 
that did not meet or exceed the pro-
ficient level of academic achievement 
exceed 35 percent of all students en-
rolled in a school in such agency who 
took the assessment in such subject 
and averaged across all grades; and’’.; 
and 
(2) by amending subparagraph (F) to read as 
follows: 
‘‘(F) DELAY.—Notwithstanding subpara-
graph (B)(ii), a State educational agency may 
delay, for a period not to exceed 1 year, imple-
mentation of corrective action under this para-
graph if the local educational agency makes 
adequate yearly progress for 1 year or its fail-
ure to make adequate yearly progress is due 
to— 
‘‘(i) exceptional or uncontrollable cir-
cumstances, such as a natural disaster; 
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‘‘(ii) a precipitous and unforeseen de-
cline in the financial resources of the local 
educational agency; or 
‘‘(iii) a sudden or significant increase 
in the number or percentage of students 
represented by any group described in sec-
tion 1111(b)(2)(C)(v).’’. 
SEC. 303. SUPPLEMENTAL SERVICES. 
Section 1116(e) (20 U.S.C. 6316(e)) is amended— 
(1) in paragraph (4)— 
(A) in subparagraph (B), by inserting after 
‘‘objective criteria’’ the following: ‘‘(developed 
through continuous consultation with local edu-
cational agencies in the State)’’; 
(B) in subparagraph (D) by striking ‘‘and’’ 
at the end; 
(C) in subparagraph (E) by striking the 
period at the end and inserting ‘‘; and’’; and 
(D) by adding at the end the following: 
‘‘(F) Develop procedures by which a local 
educational agency may— 
‘‘(i) present complaints and docu-
mentation of such complaints to the State 
educational agency regarding the qualifica-
tions, operation, and evaluation of ap-
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proved providers and potential providers 
seeking such approval; and 
‘‘(ii) demonstrate to the State edu-
cational agency that any provider should 
not be authorized to provide supplemental 
services, as described in this subsection to 
any school or schools under the jurisdiction 
of that local education agency.’’; 
(2) by redesignating paragraph (12) as para-
graph (13); and 
(3) by inserting after paragraph (11) the fol-
lowing: 
‘‘(12) LOCAL EDUCATIONAL AGENCIES AS PRO-
VIDERS.—Nothing in this section prohibits a local 
educational agency that has failed to make adequate 
yearly progress or is in improvement, corrective ac-
tion, or restructuring status pursuant to subsection 
(c) from providing supplemental services, solely due 
to such failure. In developing and applying objective 
criteria under paragraph (4)(B) and withdrawing 
approval for providers under paragraph (4)(D), a 
State educational agency may not consider whether 
a local educational agency made adequate yearly 
progress or its status under subsection (c).’’. 
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