Administrative Rule of the Month - Furosemide As A Permitted Foreign Substance

When the Kentucky Horse Racing Commission (KHRC) enabled administrative rules that eliminated the use of adjunct bleeder medications, the KHRC also incorporated an Association of Racing Commissioners International (ARCI) Model Rule that requires furosemide (Salix) administration only by a KHRC veterinarian. The Blood-Horse characterized this regulation, which went into effect on October 5th, as a "model rule that is being gradually adopted by racing jurisdictions.” Immediately, a KHRC veterinarian administered furosemide to a horse that wasn’t scheduled to race on the medication. Since then, KHRC veterinarians have missed giving a horse furosemide and administered double doses to two different horses necessitating they be scratched. (http://www.bloodhorse.com/horse-racing/articles/74504/salix-errors-frustrate-kentucky-horsemen)

Given the struggles with regulatory administration of furosemide in Kentucky, and the expectation that this ARCI Model Rule would make its way to Indiana, Indiana Breeder and Owner Protection, Inc. (IBOP) decided to make ‘Furosemide as a permitted foreign substance’ our Administrative Rule of the Month. In reviewing these rules, 71 IAC 8.5-1-5 (flat racing) and 71 IAC 8-1-5 (standardbred), what we found was rather surprising. We’ve copied an abbreviated version of 71 IAC 8.5-1-5 below, with specific emphasis on Subsection 8:

71 IAC 8.5-1-5 Furosemide as a permitted foreign substance
Authority: IC 4-31-3-9
Affected: IC 4-31-12
Sec. 5. Furosemide may be administered intravenously to a horse, which is entered to compete in a race. Except under the instructions of the official veterinarian or the racing veterinarian for the purpose of removing a horse from the veterinarian's list or to facilitate the collection of a post-race urine sample, furosemide shall be permitted only after the official veterinarian has placed the horse on the furosemide list. In order for a horse to be placed on the furosemide list, the following process must be followed:

(Note: Subsections (1) through (7) removed for brevity.)

(8) Medication administration. Bleeder medication shall be administered by a veterinarian licensed by the commission at an intravenous dose level not to exceed five hundred (500) milligrams and no less than one hundred fifty (150) milligrams. The executive director or stewards may designate certain official veterinarians, racing veterinarians, and/or practicing veterinarians to administer furosemide under this rule. Such designation may be determined daily, weekly, or for any other appropriate time period. Administration of furosemide shall take place in the test barn or a specific location otherwise designated by the commission. An association employee shall be present and observe the drawing of furosemide into a syringe. The administering veterinarian shall provide a factory sealed bottle of furosemide from which the draws shall be made. The association shall establish track rules for furosemide administrations that are consistent with these regulations.

(Note: Subsections (9) through (10) removed for brevity.)

(Indiana Horse Racing Commission; 71 IAC 8.5-1-5; emergency rule filed Jun 15, 1995, 5:00 p.m.: 18 IR 2880, eff Jul 1, 1995; emergency rule filed Aug 9, 1995, 10:30 a.m.: 18 IR 3413; emergency rule filed May 20, 1996, 10:00 a.m.: 19 IR 2893; emergency rule filed Feb 13, 1998, 10:00 a.m.: 21 IR 2420; errata filed Oct 15, 1998, 12:39 p.m.: 22 IR 759; emergency rule filed Jun 8,1999, 9:30 a.m.: 22 IR 3123, eff May 26, 1999 [NOTE: IC 4-22-2-37.1 establishes the effectiveness of an emergency rule upon filing with the secretary of state. LSA Document #99-107(E) was filed with the secretary of state June 8, 1999.]; readopted filed Oct 30, 2001, 11:50 a.m.: 25 IR 899; emergency rule filed Mar 10, 2006, 11:00 a.m.: 29 IR 2223; errata filed Apr 10, 2006, 2:00 p.m.: 29 IR 2546; emergency rule filed Jul 28, 2006, 11:17 a.m.: 20060809-IR-071060278ERA, eff Aug 1, 2006; readopted filed Mar 23, 2007, 11:31 a.m.: 20070404-IR-071070030RFA; emergency rule filed Mar 3, 2011, 11:50 a.m.: 20110309-IR-071110100ERA; emergency rule filed Jan 25, 2012, 12:20 p.m.: 20120201-IR-071120056ERA)

According to 71 IAC 8.5-1-5(8), the IHRC has already granted themselves the authority to “designate” what veterinarians administer race-day furosemide; “The executive director or stewards may designate certain official veterinarians, racing veterinarians, and/or practicing veterinarians to administer furosemide under this rule. Such designation may be determined daily, weekly, or for any other appropriate time period.” By the IHRC’s own definitions, the ‘official veterinarian’ is their Equine Medical Director and a ‘racing veterinarian’ is their stable of Commission Veterinarians. A ‘practicing veterinarian,’ while not defined specifically by the IHRC, is a private practice veterinarian. So, there you have it, the IHRC can already “designate” ANY veterinarian to administer furosemide to your horse.

One issue we see with the IHRC being able to “designate” any veterinarian to administer furosemide is the ‘trainer responsibility’ rule. Both Indiana statute and IHRC’s administrative rules place sole responsibility for medication violations on the trainer as being “negligent in their handling or care of the horse.” If the trainer has no control over who administers furosemide, then how can they be held responsible for any mistakes in its administration? Generally, most racing jurisdictions don’t readily admit to or take responsibility for their mistakes. More specifically, there’s a bigger issue with this ability to “designate” what veterinarian administers your horse’s furosemide. The IHRC’s granting themselves this authority in 71 IAC 8.5-1-5(8) and 71 IAC 8-1-5(8) appears to violate Indiana law.

According to IC 4-31-12-7(a), which is copied below, veterinarians “appointed by the commission” are prohibited from treating any horse unless an emergency exists. We view the ability to "designate" a veterinarian as used in 71 IAC 8.5-1-5(8) and 71 IAC 8-1-5(8) as synonymous to "a veterinarian appointed" as used in IC 4-31-12-7(a). Clearly, administration of furosemide is providing a medical remedy, i.e. a treatment, for alleviating a condition and is not an emergency treatment. Simply, per IC 4-31-12-7(a), the IHRC cannot designate or appoint ANY veterinarian to administer furosemide to race horses and IBOP’s view is that the Indiana Administrative Code should reflect that prohibition.

Given our view, IBOP has petitioned the IHRC staff and each commissioner to have 71 IAC 8.5-1-5(8) and 71 IAC 8-1-5(8) brought into compliance with Indiana law. We also see this as another indictment of the IHRC's perpetual use of the emergency rulemaking process to avoid the scrutiny of their administrative rules and practices.

IC 4-31-12-7
Veterinarians appointed by commission; prohibition on treatment of horses on the grounds; compensation
Sec. 7. (a) A veterinarian appointed by the commission or employed by a permit holder may not, during the period of the veterinarian's employment, treat or issue prescriptions for a horse on the grounds of or registered to race at a track, except in case of emergency. A full and complete record of an emergency treatment or a prescription shall be filed with the stewards or judges.
(b) An owner or trainer may not directly or indirectly employ or pay compensation to a veterinarian who is employed by the commission or a permit holder.
As added by P.L.341-1989(ss), SEC.2.

You can find IBOP's Letter to the Commissioners at: http://ibopindy.blogspot.com/2012/11/request-to-modify-furosemide-as.html