Policy Advisory - Providing OJT-APP Training Agreement to VA_

Policy Advisory: Providing the Training Agreement for Apprenticeship (APP) and Onthe-Job Training (OJT) Programs to the Department of Veterans Affairs (VA)
July 28, 2020
Purpose: Education Service (EDU) is clarifying how and when approved On-the-Job
Training (OJT) and Apprenticeship (APP) program providers should comply with the
regulatory and statutory requirements to provide to VA a signed copy of the training
agreement (e.g., the VA Form 22-8864, Training Agreement for Apprenticeship and
Other On-the-Job Training Programs, or the Department of Labor (DOL) Form ETA-671,
Program Registration and Apprenticeship Agreement).
Issue: Sections 21.4261 and 21.4262 of title 38, Code of Federal Regulations (C.F.R.),
and 38 U.S. Code § 3677(c) permit State Approving Agencies (SAAs) to approve an
employer or training establishment’s application to provide APP and OJT when, “upon
investigation” by the SAA, the employer/training facility has met certain criteria. Among
these criteria is that a “signed copy of the training agreement for each eligible Veteran
or person, including the training program and wage schedule as approved by the State
Approving Agency, [be] provided to the Veteran or eligible person and the Department
of Veterans Affairs and the State Approving Agency by the employer.” 38 C.F.R. §
21.4261(c)(3), 21.4262(c)(10) (emphasis added).
Questions have arisen about the necessity to provide the applicable training agreement
form for OJT and APP programs when submitting the VA Form 22-1999, Instructions
and Certifications for VA Enrollment Certification (hereinafter “certification”) – the
certification that the employer/trainer completes to report a trainee’s program, length of
program and continued enrollment. Currently, the primary purpose of submitting the
applicable training agreement form is to ensure compliance with OJT or APP
requirements, including the beneficiary’s signing of the training agreement form to
indicate his or her awareness of the type of training he or she will be trained in by the
provider. Because there is a specific compliance oversight process for OJT and APP
programs then the more appropriate juncture for VA to view the signed copy of the
training agreement is during the compliance survey and not during the certification.
Discussion/Answer: An analysis of the authorizing statute and the regulations
regarding the course type at issue in VA’s course requirement regulations at 38 C.F.R.
§ 21.4250, et. seq. (specifically, § 21.4261 and 21.4262) indicates that there is no legal
reason why the provision of the training agreement form needs to occur in conjunction
with completing the VA Form 22-1999 certification. VA regulations at sections
21.4261(c) and 21.4262(c), and the latter’s authorizing statute at 38 U.S.C.
§ 3677(c)(10), currently require the training agreement form be provided to the
beneficiary and VA by the employer/training establishment so that it is available should
an SAA investigation be warranted, but do not further specify how and when the
document be provided to VA. Rather, the statutory and regulatory language indicate
that the requirement to provide the training agreement form is so that VA can confirm
compliance to VA statute and regulations of employers and training establishments.

Additionally, under current VA procedures, RPO staff, when provided the agreement
during the course of processing OJT and APP claims, sometimes find training
agreement form issues. Such issues are discrepancies or concerns with the training
establishment’s completion of the agreement, based on the information in the form itself
or when compared to other training establishment submissions, or, a failure of the
employer/training facility to timely submit the training agreement altogether. When
these situations occur, under the current process, claims processing for the training
benefits are delayed because completion issues and submission delays necessitate that
Veterans Claims Examiners further develop the claim for clarification.
It therefore seems more sensible that VA’s oversight and compliance personnel confirm
that the content of training agreement complies with requirements, rather than claims
processors. Moreover, the statutory and regulatory language’s focus of “upon
investigation” also supports the interpretation that the relevant form be provided in the
course of VA’s compliance and oversight work.
Therefore, to prevent processing delays and more sensibly deliver the applicable
training agreement, EDU has determined that the requirement to provide the training
agreement to VA will be satisfied by providing the applicable training agreement form to
VA in the course of a compliance survey; ELRs and RPOs no longer need to receive the
form as a prerequisite to VA’s processing enrollment certification. Therefore, as of the
effective date of this advisory, employers/training establishments are only required to
provide a copy of the signed training agreement upon request (e.g., during a
compliance survey).
Effective Date: July 28, 2020
Questions: If you have any questions, please direct them to the Education Service
Policy & Regulations Team via email at POLPROC.VBACO@va.gov.