Administrative Rule of the Month - Cost of Split Sample Testing

If you are a regular reader of our blog and/or newsletter, you’ve probably recognized that Indiana Breeder & Owner Protection, LLC (IBOP) is very critical of the Indiana Horse Racing Commission’s (IHRC) use of the emergency rulemaking process. One of our key concerns is the lack of any meaningful oversight to determine whether an IHRC rule is even authorized by Indiana statute. This month's Administrative Rule of the Month regarding the 'Cost of Split Sample Testing’ is another such example of how this lack of meaningful oversight impacts horsemen. Simply put, the IHRC through emergency rulemaking has adopted 71 IAC 8.5-3-5(b) for the flat racing breeds and 71 IAC 8-4-5(b) for standardbreds which we see as contrary to Indiana law. We’ve copied the flat racing rule below which you can clearly see in (b) has placed a burden of paying for split sample testing and negative control samples on an owner or trainer.

71 IAC 8.5-3-5 Cost of split sample testing
Authority: IC 4-31-3-9
Affected: IC 4-31-12

Sec. 5. (a) In order for a split sample laboratory to be identified on the list of approved laboratories, it must establish reasonable fees for split sample testing based on their actual cost of testing. Fees for split sample testing shall include the cost of testing negative control samples if requested by the owner or trainer.
(b) The trainer or owner requesting split sample testing and negative control samples shall pay all costs of transporting and conducting tests on the split sample and negative control samples. (Indiana Horse Racing Commission; 71 IAC 8.5-3-5; emergency rule filed Jun 15, 1995, 5:00 p.m.: 18 IR 2884, eff Jul 1, 1995; readopted filed Oct 30, 2001, 11:50 a.m.: 25 IR 899; readopted filed Mar 23, 2007, 11:31 a.m.: 20070404-IR-071070030RFA)

All samples taken from horses participating in a race are supposed to be split into two parts (three parts for any out-of-competition testing). One part goes to the primary lab for testing with the other being stored. If the results from the primary lab indicate a positive for a foreign substance or test beyond a specific threshold, the owner or trainer has the option to have the stored, ‘split’ sample tested for verification. Unfortunately, there are no available statistics to determine how many horsemen take advantage of getting the split sample tested. The ‘cost of split sample testing’ rules create financial barriers to doing so. According to one of the IHRC-approved split sample labs, the University of California-Davis’s Thurman Laboratory, a test similar to the primary test starts at $230 with other, more specific tests as much as $2,000 for EPO.

Yet, this financial barrier to getting a split sample tested should not even exist! Chapter 12 of the Pari-Mutuel Wagering on Horse Races law is entitled, “Medication of Race Horses.” Clearly and simply stated in IC 4-31-12-6(b), which copied below, you see "The cost of analyzing specimens shall be borne by the commission.” There is no exception anywhere in Indiana law that allows for the IHRC to pass the cost on to an owner, split sample or otherwise. Yet, the IHRC does just that. The question, which we are estimating has never been asked by a commissioner, has to be, why?

IC 4-31-12-6
Appointment of veterinarian; approval of laboratory; analysis of specimens
Sec. 6. (a) The commission:
(1) shall appoint, at its cost, a veterinarian licensed to practice in Indiana to take or supervise the taking of specimens under section 5 of this chapter;
(2) shall approve a laboratory for the analysis of those specimens; and
(3) may require that a specimen taken under section 5 of this chapter be analyzed.
(b) The cost of analyzing specimens shall be borne by the commission.
(c) The commission may appoint, at its cost, veterinarians or other persons to supervise all activities in the state testing barn area and to supervise the practice of veterinary medicine at all racetracks in Indiana.
(d) The commission shall employ or contract for assistants to aid in securing specimens at each racetrack. These assistants shall have free access, under the supervision of the commission's veterinarian, to the state testing barn area. The permit holder shall, in the manner prescribed by the rules of the commission, reimburse the commission for the salaries and other expenses of the assistants who serve at the permit holder's racetrack.
As added by P.L.341-1989(ss), SEC.2. Amended by P.L.24-1992, SEC.37.

In our opinion, the IHRC staff over the years has created a complicated set of rules to prevent horsemen from challenging their authority. Rules like the ‘cost of split sample testing’ are about control, plain and simple. Without meaningful oversight by our commissioners, or a review by Indiana’s Attorney General in the regular rulemaking process, Indiana law just doesn’t matter and it should. One of IBOP’s next “Letters to the Commissioners” will be a request to modify the ‘cost of split sampling testing’ rules to conform to Indiana law. At that point, we expect the ‘cost’ card to be played, as in ‘the IHRC can’t afford to pay for the cost of analyzing each split sample.’

We would disagree with any such notion as the IHRC has plenty of funding. According to information IBOP has attained from the Indiana State Budget Agency, the IHRC only spent $1,488,380 of their $2,233,636 budget in fiscal year 2012 which ended on June 30th. Plus, the IHRC has available each fiscal year $850,000 from the Gaming Integrity Fund, which specifically came into existence “To pay the cost of taking and analyzing equine specimens under IC 4-31-12-6(b) or another law or rule and the cost of any supplies related to the taking or analysis of specimens.” The annual contract between the IHRC and their primary lab, Truesdail Laboratories, is $661,500, which would allow for a budget to pay for the cost of split sample testing form the Gaming Integrity Fund.

Our question is, where’s the ‘integrity’ with a rule that violates Indiana law? Refunds are in order for everyone charged by the IHRC for the cost of a split sample test.