Request to Eliminate Split Sample Testing Costs

As a follow-up to our August Administrative Rule of the Month, IBOP sent the following request to the Indiana Horse Racing Commission requesting the elimination of the costs of split sample testing from being charged to the horsemen.

"Pursuant to ‘71 IAC 2-12-1 Procedures,’ Indiana Breeder & Owner Protection, Inc. (IBOP) is requesting that the Indiana Horse Racing Commission (IHRC) consider the amendment of 71 IAC 8.5-3-5(b) and 71 IAC 8-4-5(b) to conform to IC 4-31-12-6(b). Please consider this correspondence as IBOP’s petition for the IHRC to amend both administrative rules, which are titled as ‘Cost of split sample testing.’ Our view is that both of these rules, which place the burden of the cost of split sample testing on an owner or trainer, are contrary to Indiana statute. IBOP would appreciate changes to these rules be considered as an agenda item at the next regularly scheduled IHRC meeting on August 30, 2012.

The flat racing rule 71 IAC 8.5-3-5 is copied below. Clearly, 71 IAC 8.5-3-5(b) places the burden of “all costs” for split sample testing and negative control samples on the requesting 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)

However, IC 4-31-12-6(b) states, "The cost of analyzing specimens shall be borne by the commission.” The entirety of IC 4-31-12-6 is copied below. We can find no exception within Indiana law that allows for the IHRC to pass the cost of analyzing these “specimens” on to an owner or trainer as currently in 71 IAC 8.5-3-5(b) and 71 IAC 8-4-5(b). Split sample testing is designed to eliminate the possibility that an error at the primary lab contributed to any positive test. The split sample test at a secondary lab is a verification of the integrity of the primary test and verification in which the IHRC should have an interest.

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.

Given that IC 4-31-12-6 refers to IC 4-31-12-5, we’ve copied that section for review as well:

IC 4-31-12-5
Blood and urine tests
Sec. 5. (a) The judges, the stewards, a commission veterinarian, a member of the commission, or the secretary of the commission may order a blood test or urine test, or both, on a horse for the purpose of analysis.
(b) A blood specimen or urine specimen, or both, shall be taken from the following horses after the running of each race:
(1) The horse that finishes first in each race.
(2) Any other horses designated by the judges, the stewards, a commission veterinarian, a member of the commission, or the secretary of the commission. The judges and veterinarian shall designate for the taking of such a specimen a horse that races markedly contrary to form.
As added by P.L.341-1989(ss), SEC.2. Amended by P.L.24-1992, SEC.36.

To further support our view, IC 4-35-8.7-3(f)(1) specifically provides available funding for paying for the cost of samples taken “under IC 4-31-12-6(b).” There is no differentiation in the Gaming Integrity Fund statute between a primary specimen and any other specimen. Through the Gaming Integrity Fund, the IHRC has available each fiscal year $850,000. The annual contract with Truesdail Laboratories for primary testing is currently $661,500, so cost should not be an issue. The Gaming Integrity Fund statute is copied below:

IC 4-35-8.7-3
Gaming integrity fund
Sec. 3. (a) The gaming integrity fund is established.
(b) The fund shall be administered by the Indiana horse racing commission.
(c) The fund consists of gaming integrity fees deposited in the fund under this chapter and money distributed to the fund under IC 4-35-7-12. Fifteen percent (15%) of the money deposited in the fund shall be transferred to the Indiana state board of animal health to be used by the state board to pay the costs associated with equine health and equine care programs under IC 15-17.
(d) The treasurer of state shall invest the money in the fund not currently needed to meet the obligations of the fund in the same manner as other public funds may be invested.
(e) Money in the fund at the end of a state fiscal year does not revert to the state general fund.
(f) Money in the fund may be used by the Indiana horse racing commission only for the following purposes:
(1) 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.
(2) To pay dues to the Drug Testing Standards and Practices (DTSP) Committee of the Association of Racing Commissioners International.
(3) To provide grants for research for the advancement of equine drug testing. Grants under this subdivision must be approved by the Drug Testing Standards and Practices (DTSP) Committee of the Association of Racing Commissioners International or by the Racing Mediation and Testing Consortium.
(4) To pay the costs of post-mortem examinations under IC 4-31-12-10.
(5) To pay other costs incurred by the commission to maintain the integrity of pari-mutuel racing.
As added by P.L.233-2007, SEC.21. Amended by P.L.142-2009, SEC.27; P.L.229-2011, SEC.61.

IC 4-22-2-19.5 Standards for rules (copied below) also supports IBOP’s view regarding 71 IAC 8.5-3-5(b) and 71 IAC 8-4-5(b) where minimizing expenses to “regulated entities” be a consideration in all administrative rules. IBOP’s position is also that the IHRC should provide refunds to all those who have been charged for split sample testing costs since at least the existence of the Gaming Integrity Fund, if not beyond.

IC 4-22-2-19.5
Standards for rules
Sec. 19.5. (a) To the extent possible, a rule adopted under this article or under IC 13-14-9.5 shall comply with the following:
(1) Minimize the expenses to:
(A) regulated entities that are required to comply with the rule;
(B) persons who pay taxes or pay fees for government services affected by the rule; and
(C) consumers of products and services of regulated entities affected by the rule.
(2) Achieve the regulatory goal in the least restrictive manner.
(3) Avoid duplicating standards found in state or federal laws.
(4) Be written for ease of comprehension.
(5) Have practicable enforcement.
(b) Subsection (a) does not apply to a rule that must be adopted in a certain form to comply with federal law.
As added by P.L.17-1996, SEC.2.

Thank you for this consideration of this petition,

Jim Hartman
IBOP Vice-President

CC: Chairman Diener
Commissioner Lauck
Commissioner Schaefer
Commissioner Grimes
Commissioner Barclay"