Administrative Rule of the Month - 71 IAC 8.5-3-3 Administrative Procedures Prior to Split Sample Testing

Two of the key initiatives communicated in Indiana Breeder and Owner Protection Inc.'s (IBOP) first newsletter were the 'Protection of Owner's Rights' as well as the 'Protection of the Integrity Involved with Drug Testing' as part of our mission. February's 'Administrative Rule of the Month' is a review of a rule where the owner's rights and drug testing merge together with '71 IAC 8.5-3-3 Administrative procedures prior to split sample testing' in the flat racing rulebook. The equivalent rule in the standardbred rulebook, '71 IAC 8-4-3,' which omits one sentence that is included in the flat racing rule, will not be specifically reviewed. Yet, the standardbred rule has the exact same issues that will be pointed out in this article.

Like most other racing jurisdictions, if not all other racing jurisdictions, the Indiana Horse Racing Commission (IHRC) has adopted "trainer responsibility" rules (71 IAC 5.5-3-2) whereby the trainer is responsible for the presence of a prohibited substance or a medication in excess of an allowable level. The section of the rulebook that includes all of the IHRC's medication rules is dotted with the sentiment behind the trainer responsibility rule where the presumption is that any violation for a medication overage or prohibited substance "was administered and carried in the body of the horse while participating in a race." If there's a violation, the trainer is supposedly the sole responsible party. Yet, there are consequences to the owner as well with the potential of loss of purse money, fines, and under IHRC rules be required to stable all horses participating in a race meet at the track. Under '71 IAC 5.5-2-6 Owner - positive tests' just two positive tests for a prohibited substance in a five-year period can place an owner into this IHRC requirement. So, while the trainer is responsible, the owner can be significantly penalized as well.

Through administrative rules, the IHRC has tried to tie their penalty system for both an owner and a trainer to the Association of Racing Commissioners International's (ARCI) Uniform Classification Guidelines For Foreign Substances and Recommended Penalties. The most recent version of this document can be found at the following link: http://arci.com/druglisting.pdf. If you review this document, what you will see is that there is a penalty structure for the most serious violations (Class A) to the least serious (Class C) violations. Within each classification, the severity of the penalties to an owner is significantly ramped up for a third violation in a 365-day period in any jurisdiction within an owner's entire "stable." (The term stable is not defined which opens it's meaning to interpretation.) A question that IBOP is raising with our Administrative Rule of the Month is, are the trainer's and owner's interests always the same or always aligned given the potential ARCI penalties?

Our answer is that many times, and we stress many times, the interests of the owner and the trainer are aligned. However, there are times when they may not be, and the problem we see is that the 'administrative procedures prior to split sample testing' rules treat the owner and the trainer as one entity with interests that are the same ALL the time, and that needs to be changed. Since trainers can, and do, train horses for multiple owners, a trainer's third violation within any penalty class in a 365-day period could be an owner's first violation. Conversely, owners can, and some do, have their "stable" spread out over more than one trainer and/or have trainers at multiple locations. Therefore, an owner's third violation in 365-day period, even spread over multiple trainers, could very well be the first violation for a trainer. In both these examples, the owner and the trainer are in different penalty scenarios under the ARCI model penalties. For example, a small overage of bute is a Class C penalty. The first violation for a trainer can very well be just a warning, but if its the third for the owner in a 365-day period, there is a loss of purse money which is a much more severe penalty. The first violation in this category for an owner does not include a loss of the purse.

We can think of other scenarios where an owner's interests might be different than his or her trainer's. Here's exactly how the rule reads as of today and we've highlighted a few trouble spots in bold:

71 IAC 8.5-3-3 Administrative procedures prior to split sample testing
Authority: IC 4-31-3-9
Affected: IC 4-31-12
Sec. 3. (a) The results of all tests performed by the primary laboratory or laboratories are confidential and shall only be communicated to the commission, stewards, owner, and trainer. The trainer shall be responsible for promptly notifying the owner of a horse of a positive test as reported by the primary laboratory.
(b) The trainer or owner of a horse for which a positive result on a drug test is returned may request that the stewards submit the retained part of the specimen for testing in accordance with this section. The specimen must be tested by a laboratory that is identified on the list of approved laboratories maintained by the commission and acceptable to the following:
(1) The commission.
(2) The primary laboratory.
Laboratories providing split sample testing shall be ISO 17025 accredited unless otherwise approved by the commission. The request must be in writing and must be delivered to the stewards not later than seventy-two (72) hours after the trainer has received notice of a positive test result. Notice of a positive test result may be communicated verbally to the trainer. Failure to request testing of a split sample within seventy-two (72) hours shall constitute a waiver of the right. The split sample laboratory shall be contacted by a representative of the commission to request acceptance of a split sample. The trainer or owner may choose any laboratory on the commission maintained applicable list to test the sample. However, the commission or executive director may limit the choice of laboratory for the detection of specific drugs.
(c) The trainer or owner may elect to waive his or her right to testing of a split sample.
(d) The owner or trainer of a horse who submits a specimen for drug testing is entitled to be present or have a representative present at any time that the retained part of the specimen is prepared for storage or is tested.
(e) The owner or trainer of a horse who submits a specimen for testing to a split sample laboratory must execute a hold harmless agreement for the split sample laboratory and an agreement that the results of the split sample laboratory can be introduced as evidence in any hearing. The agreements shall remain in the hands of the stewards of the state in which the positive was reported.
(f) The trainer or owner may request that negative control samples be tested with the split sample. The identities of the negative control samples and the split sample shall be known only to the commission.
(g) The presence of a drug or drug metabolite in any quantity, excluding phenylbutazone, flunixin, ketoprofen, furosemide, or as permitted in 71 IAC 8.5-1-4.2 and 71 IAC 8.5-1-9, is sufficient for a finding of a positive test.
(Please Note: We've removed the standard History Line from the rule to save some space.)

Subsection (a) states, "The results of all tests performed by the primary laboratory or laboratories are confidential and shall only be communicated to the commission, stewards, owner, and trainer." So, the owner and the trainer are included for notification, but in reality, the next sentence places the responsibility of notifying the owner on the trainer, "The trainer shall be responsible for promptly notifying the owner of a horse of a positive test as reported by the primary laboratory." Given the IHRC's delegation of the notification to the trainer, the first sentence should read "...shall only be communicated to the commission, stewards, and trainer." While we agree that most trainers would immediately notify the owner, there is never a guarantee especially if the impact of any penalty to a trainer is minimal with an assumption that any potential penalty to the owner would be as well. Could there also be a scenario where the trainer wouldn't want the owner to know immediately? We feel that the IHRC should also notify the owner. The other concern we have is that subsection (b) states, "Notice of a positive test result may be communicated verbally to the trainer." Basically, the IHRC does not have to notify the owner of the horse of a primary positive test and has no requirement to notify anyone in writing. Providing notification in writing eliminates any potential dispute as to 'what was said to whom and when?'

IBOP is committed to petitioning the IHRC to change this rule to add a requirement that the owner of a horse and its trainer be notified in writing of a positive test for a prohibited substance or an overage of an approved medication. Given the potential consequences to both an owner and a trainer, the IHRC not being required to provide a written notification to anyone is dumbfounding. IBOP is also committed to petitioning the IHRC to require this written notification within 72 hours of the receipt of the results from their primary lab. With no specific requirement in which the IHRC is required to provide primary test results to anyone; theoretically, days, weeks and months could go by. The 72 hour notification is the same amount of time that the IHRC has given an owner or a trainer to request a split sample test when a primary test is positive. If the IHRC believes that is a reasonable time for a response, then we believe 72 hours is a reasonable timeframe for a notification. IBOP is also committed to petition the IHRC to modify subsection (c) to read "The trainer and owner may elect to waive his or her right to testing of a split sample." The sentence current reads "trainer or owner." This change would allow for both parties to be treated as having separate interests, not a combined interest.

Ironically, the IHRC through "71 IAC 8.5-3-4 Administrative procedures subsequent to split sample testing" does require that a written report from the split sample laboratory be provided to both the owner and the trainer. 71 IAC 8.5-3-4(a) reads, "The split sample laboratory shall send a confidential written report on the result of its tests to the commission which in turn shall send a confidential report to the trainer and owner forthwith." Webster's dictionary defines 'forthwith' as "immediately; without delay; directly." So, if the IHRC can send a written report on a split sample to an owner and a trainer "forthwith," why can't they do the same "forthwith" for a primary test?

The easy answer is the IHRC can, but would rather control the timing of any notification. Doing so allows the IHRC staff to determine whether a trainer is a potential serial offender with a particular medication. In this situation, the IHRC purposely does not communicate a positive test when received to allow for the possibility of having a trainer accumulate multiple violations. However, at the same time, even with the trainer being responsible, the owner is accumulating more violations through no fault of his or her own. In situations like this, which do happen in Indiana, an owner should be apprised immediately (forthwith) of the activities involved with their property. This is an owner's right that the IHRC needs to recognize. We also see this delayed notification practice by the IHRC as being contrary to state law.

The purpose of medication testing in Indiana statute, as spelled out in a chapter entitled "Medication of Race Horses," is directed at the IHRC. This section is copied below:

IC 4-31-12-1
Purpose
Sec. 1. The purpose of this chapter is to protect the integrity of horse racing, to guard the health of the horse, and to safeguard the interests of the public and the racing participants through the prohibition or control of all drugs and medications or substances foreign to the natural horse.
As added by P.L.341-1989(ss), SEC.2.

If the IHRC has a concern, based upon a positive primary test, to the degree that test results are not communicated to anyone in a timely fashion, then they have failed to meet any standard as outlined in IC 4-31-12-1. While it is in the public interest to have serial offenders penalized, this tactic employed by the IHRC does nothing to protect the integrity of wagering, nor does it protect the health of the horse or safeguard any others participating in racing. This practice also inhibits an owner's opportunity to protect themselves and compromises an owner's rights to due process.

Positive tests are considered in the IHRC administrative rules to be "prima facie evidence" meaning that unless rebutted is enough evidence to prove their position. IHRC rules also place the burden of proof on a trainer to prove otherwise. With any right to due process, timeliness of a notification of a potential violation is key. Since an owner can also be penalized, an owner should have the right to investigate any possible violation as close to when the potential violation had occurred. IHRC Executive Director Joe Gorajec seems to agree with IBOP's position.

In sworn testimony in a hearing in front of an Administrative Law Judge (ALJ), Mr. Gorajec was asked by the ALJ to clarify his testimony regarding the lack of an IHRC initiated investigation in a particular situation. He said, "It's my testimony that in a case of a serious violation, that in order to collect the kind of documentation you would likely need in order to pursue a violation or charges, you would need to begin that investigation contemporaneously or near contemporaneous with the actual violation occuring." To use his term "contemporaneously," which means happening at the same time, an owner should have the right to contemporaneously investigate any possible violation regarding his or her own horse to assist with any defense. And, an owner should have the immediate right to determine if a trainer should be retained based upon the treatment of his or her horse.