II 111th CONGRESS 1st Session S. 1581 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.

Short title

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

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.).

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. .

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.

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. .

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 .