Horseracing Integrity and Safety Authority releases proposed rules on medication use, anti-doping programs
The Horseracing Integrity and Safety Authority on Friday afternoon released a massive tranche of proposed national rules that will regulate medication use, the authority’s anti-doping programs, and its testing and intelligence-gathering protocols.
The rules were posted on the website to gather public comment on the regulations prior to being submitted to the Federal Trade Commission, the oversight agency for HISA. HISA officials have said they intend to collect public comment on the rules until the planned FTC submission on July 1, with the intention of having a set of rules approved by the FTC and ready to be enforced as of Jan 1.
The proposed rules cover broad territory and establish prohibited and controlled medications, penalties for violations of those policies, appeal procedures, standards of evidence, laboratory accreditation, and the protocols that will guide the collection and testing of both out-of-competition and post-race samples. While the rules have broad similarities to existing practices in racing, there are notable departures within six sections that run nearly 200 single-spaced pages.
HISA initially released a similar set of rules last November that were developed in close collaboration with the U.S. Anti-Doping Agency, a private company that was expected to enforce HISA’s medication and anti-doping rules. However, negotiations over a business contract with USADA fell through in December, and the rules were pulled from consideration. As a result of that development, HISA delayed the implementation of its medication control and anti-doping program from July 1 of this year to the new date at the start of next year.
Early last month, HISA reached an agreement with another private drug-enforcement agency, Drug Free Sport International, which has experience in several major-league sports.
HISA, which was created by federal legislation that passed late in 2020, remains contentious among some racing constituencies, most notably some horsemen’s groups and state racing commissions that have sued over the constitutionality of the enabling legislation. Earlier this year, a federal judge in Texas dismissed one of the challenges, though another remains pending in federal court in Kentucky.
More broadly, racing constituents have bristled over new requirements under the act, including the registration with HISA of all licensees and all horses in the United States that have either started in a race or made a timed workout. Those registrations must be complete prior to July 1 for a horse to be eligible to run. HISA and several supportive horsemen’s group have been mounting intense communications efforts over the past several weeks urging horsemen and owners to complete the registration process.
Under the enabling legislation, HISA has the power to draft and enforce rules and regulations covering any horse race in the United States that is made available for interstate betting, a category that includes 99 percent of the races held in the United States. The national regulations will replace a state-by-state system that has been criticized for decades for its lack of uniformity from jurisdiction to jurisdiction.
Last year, HISA submitted a tranche of rules to the FTC dealing with racetrack safety practices after a brief public-comment period. In March, the FTC approved those rules in nearly identical form to the rules that HISA submitted in December, despite a large number of public comments. Those rules will go into force July 1.
Opponents of HISA and the new rules have complained about the accelerated timeframe under which HISA is operating in order to get its programs up and running, but HISA officials have pushed back against that criticism by pointing out that the dates it is operating under were set in the federal legislation.
“We were given these deadlines by Congress,” said Lisa Lazarus, chief executive officer of HISA, during a webinar conducted Wednesday to help horsemen with the registration process. “These are not our deadlines.”
The following are highlights from the six sections of rules posted Friday:
* The proposed regulations maintain the “absolute insurer” rule that has been in force in Thoroughbred racing for decades, a rule that holds the trainer responsible for a positive test regardless of fault. According to the proposed rules, the “responsible person” – usually the trainer – is considered “strictly liable for any banned substances” and it will not be “necessary to demonstrate intent, fault, negligence, or knowing use” to establish a violation.
* In addition, the possession, “trafficking or attempted trafficking,” and any attempted administration of a banned substance will constitute a violation, the rules state. Violations also will include “tampering” with any part of an investigation or “assisting, encouraging, aiding, abetting, conspiring, covering up, or engaging in any other type of intentional complicity or attempted complicity.”
* The rules divide substances into two categories: “banned” and “controlled.” Banned substances are those that have no therapeutic benefit to a horse and that can affect the horse’s performance or impact testing results, and any use of those substances will be covered under the authority’s anti-doping rules. Similarly, banned practices – such as gene-doping or blood-doping – also will be adjudicated under the anti-doping rules.
* Controlled substances are those that have legitimate therapeutic use in a horse but which are prohibited from being administered within certain days of a race. As is the case currently, controlled substances may be regulated by the authority with minimum reporting levels, threshold levels, or decision-limit levels, according to the rules. Those provide for small amounts of the drugs to appear in a horse’s system on race day because the levels are considered pharmacologically insignificant.
* Any violation of the anti-doping rules will result in the disqualification of the horse, and some violations will result in the banning of the individual horse for a certain number of months. Any horse that is the subject of a gene-doping attempt will be banned for life.
* The person held responsible for the violation of an anti-doping rule will be banned on the first offense for two years. Trafficking in banned substances will lead to a four-year ban. However, the rules do provide for reductions in those bans if the “responsible person” can prove that there was “no fault or negligence,” the rules state. The bans also can be reduced if the violator provides “assistance” in the prosecution of another person who has violated anti-doping rules.
* The rules maintain the current practice of disregarding a positive result from the initial sample if the split sample subsequently tests negative.
* For anti-doping violations, after a test of a split sample confirms the initial result, the authority will issue a “charge letter” to the trainer, who will then face a “provisional ban” until the case is fully adjudicated. However, the trainer can request a hearing seeking the lifting of the provisional ban, the rules state, with the hearing being held “on a timely basis.” Any time served under the provisional suspension will be credited to any official suspensions.
* If a trainer appeals the anti-doping violation laid out in the charge letter, the case will go to an arbitrator who will be required to issue a decision within 14 days of the arbitration hearing. The decision by the arbitrator “shall be final and binding,” the rules state.
* For appeals under the anti-doping program, arbitrators will be selected from a pool of “no more than 10 members appointed by the mutual agreement of the authority” and the drug-enforcement agency, in this case, Drug Free Sport International. Each arbitrator will serve a four-year term in the pool. Arbitration hearings, by rule, “shall be open to the public.” Arbitration hearings “should” be held “no more than 60 days” from the date of the request of the appeal. The person appealing the decision will be allowed to submit a “pre-hearing submission” of no more than 30 pages, according to the rules.
* As with banned substances, horses that test positive for controlled medications will be automatically disqualified, according to the rules. A first offense for a controlled medication violation will be a 15-day penalty. However, that penalty can be eliminated, though only in rare cases, such as contamination of a legal substance or if the medication was administered “by veterinary or other support personnel without the knowledge” of the trainer. The suspension also can be reduced if the licensee “establishes that they bear no significant fault or negligence” or the licensee provides assistance in another investigation.
* The rules contain elements of the existing multiple medication violation protocol currently in use in racing. For a second offense of a controlled medication in a one-year period, the suspension will be 30 days, increasing to 60 for a third violation and 180 days for a fourth. In addition, the enforcement of provisional suspensions will be limited for controlled medication violations.
* The rules give the authority’s National Stewards Panel, which will adjudicate violations of controlled substances, the ability to forego any suspension as long as “no more” than one controlled medication is found in the sample and the licensee has no violations in the previous year. The National Stewards Panel also will hear any appeals of penalties for controlled medication violations. All decisions shall by “final and binding.”
* The authority will “publicly disclose” the existence of a violation at the time that the authority issues the notice to the trainer, the rules state.
* The authority plans to conduct “intelligent testing,” which it defines as practices that are “proportionate to the risk of doping, misuse of medication, and effective to detect and to deter such practices.” Currently, post-race samples are collected from every winner of every race in the United States, and usually several other horses in the race, but that practice may change significantly under the rules, officials have acknowledged, to a system where certain horses or races receive targeted scrutiny.
“The agency shall ensure that it is able to obtain, assess, and process anti-doping and medication control intelligence from all available sources to help deter and detect doping and medication abuse; to inform effective, intelligent, and proportionate test planning; to plan target testing; and to conduct investigations as required by the protocol,” the rules state. “The objective of this rule is to establish standards for the efficient and effective gathering, assessment, and processing of such intelligence for these purposes.”
* According to the rules, the authority will conduct a “risk assessment” of races to guide its sample collection and testing, using several factors, including “available statistics and research on doping trends” and “reliable information received and intelligence developed on possible doping practices.” Most human sports use risk assessments to guide sample collection and testing, and several foreign racing jurisdictions have been considering transitioning to the same practices.
* Individual horses will be targeted for testing using a dozen factors, including the trainer’s history of medication infractions, frequent moves from racetracks to a “remote location,” and “performance history, performance pattern, and/or high performance . . . without a commensurate testing record,” the rules state.
* The authority also expects to significantly expand out-of-competition testing, a practice that is currently conducted with regularity in only a handful of states. To conduct the program, trainers will be required to notify the authority any time that a horse is moved from its current location. Trainers also will be required to provide notifications of retirement and advanced notification of any plan to bring a horse out of retirement.