Administrative Rule of the Month - Taking of Samples

Ownership of property and individual rights are staples of modern capitalism. The founding documents of our country expressly put guarding your life, your property and possessions, and your individual rights into sharp focus. One of the ‘protections’ that IBOP outlined in our first newsletter was the Protection of Owner’s Rights. Unfortunately, we’ve seen how the ‘rights’ of a property owner can be regulated away.

Based upon recent actions of the Indiana Horse Racing Commission (IHRC), ownership of a horse doesn’t carry a lot weight with them. The IHRC's new version of 71 IAC 8.5-2-4 regarding the taking of blood, urine, saliva, or other test samples from a horse makes this very clear. (The standardbred version of this administrative rule is 71 IAC 8-3-4.) If you are the owner of the horse and not the trainer, you may no longer witness the taking of these samples from your own horse. At the January 24, 2012 commission meeting, the IHRC amended a rule without considering the rights of the actual horse owner.

Here is the version of the rule that was in effect before the IHRC decided to “regulate” it:

71 IAC 8.5-2-4 Taking of samples
Authority: IC 4-31-3-9
Affected: IC 4-31-12
Sec. 4. (a) Blood, urine, saliva, or other samples shall be:
(3) witnessed, confirmed, or acknowledged by the trainer of the horse being tested or his or her authorized representative or employee and may be witnessed by the owner, trainer, or other licensed person designated by them;

IBOP Comments: Clearly, this portion of the rule defines who may witness the taking of a sample from a horse for testing with the owner included.

This version of the rule was emailed to horsemen’s associations for comment prior to the IHRC meeting:

71 IAC 8.5-2-4 Taking of samples
Authority: IC 4-31-3-9
Affected: IC 4-31-12
Sec. 4. (a) Blood, urine, saliva, or other samples shall be:
(3) witnessed, confirmed, or acknowledged by the trainer of the horse being tested or his or her authorized representative or employee unless the sample is being taken pursuant to 71 IAC 8.5-7-1 (c) or 71 IAC 8.5-7-1 (d), and may be witnessed by the owner, trainer, or other licensed person designated by them;

IBOP Comments: The IHRC’s intent regarding the regulating of this rule was to eliminate any witnessing of test samples taken in a postmortem exam. The references to 71 IAC 8.5-7-1(c) and (d) are regarding post mortem exams and the taking of samples for testing. The rule states, “The presence of a prohibited substance in a specimen collected during the postmortem examination may constitute a violation.” When this proposed rule was made public, IBOP formally objected. Our position was that if a penalty could be assessed for postmortem drug testing, then “the integrity of those samples should be treated no differently than samples taken from a live horse.”

Plus, 71 IAC 8.5-7-1(d) encourages the taking of testing samples from an injured horse prior to that horse being euthanized. (With the ability to take postmortem testing samples, then why would the IHRC prefer to extend the suffering of an injured horse?) Our position on this entire rule stated that an owner or an owner’s representative should have the right to witness the chain of custody of ANY sample collected for testing ANY time unless specifically waived by the owner or the owner’s representative. Clearly, our plea for recognition of an owner’s right fell on deaf ears.

Below is the version of the rule that was filed with the Indiana Register and is now the rule in effect:

71 IAC 8.5-2-4 Taking of samples
Authority: IC 4-31-3-9
Affected: IC 4-31-12
Sec. 4. (a) Blood, urine, saliva, or other samples shall be:
(3) witnessed, confirmed, or acknowledged by the trainer of the horse being tested or his or her authorized representative or employee unless the sample is being taken pursuant to 71 IAC 8.5-7-1(c) or 71 IAC 8.5-7-1(d);

IBOP Comments: As you can see, the new IHRC-approved rule now excludes any sample being taken prior to euthanizing a horse or during a postmortem from being witnessed by the horse’s connections. You will also notice that the word “owner” no longer exists in the rule. In Indiana, the actual owner of a horse, if different from the trainer, may no longer witness, confirm, or acknowledge the taking of testing samples. Through the course of the commission’s discussion of this rule, they eliminated the phrase, “and may be witnessed by the owner, trainer, or other licensed person designated by them.”

Commissioner Jason Barclay thought that the phrase "and may be witnessed by the owner, trainer, or other licensed person designated by them" was redundant to the first part of the sentence. He is partially correct with the rule repeating the word trainer and referencing another licensed person designated by the owner or trainer. However, his efforts to remove the redundancy completely eliminated the owner from witnessing ANY taking of samples from their horse(s), postmortem or otherwise. The IHRC assumed that an owner MAY be involved, but eliminated an owner’s ability TO be involved. A trainer is an owner’s authorized representative, not the other way around, and Indiana’s commissioners should know this.

January 2012 Newsletter Archive

To view a copy of IBOP's January 2012 newsletter, click the following link: http://freepdfhosting.com/44d5139989.pdf

Administrative Rule of the Month - Trainer Continuing Education

More and more professions are adding a continuing education element to their registration and/or licensing requirements. The same can now be said for an Indiana trainer’s license for the flat racing breeds. As of January 1, 2012, there is a four hour continuing education requirement for maintaining a trainer’s license. Since this new requirement is now in effect, 71 IAC 5.5-3-1 Eligibility (for a trainer’s license) has to be IBOP’s administrative rule of the month.

While the requirement is new for 2012, this administrative rule has been on the books for almost two years. In early 2010, the Indiana Horse Racing Commission (IHRC) approved the continuing education requirement. According to the IHRC’s 2010 annual report, there were over 900 licenses issued that involve being a thoroughbred or quarter horse trainer or assistant trainer. Here is exactly how the administrative rule reads:

(h) Beginning no later than January 1, 2012, in order to maintain a current license, trainers must complete at least four (4) hours per calendar year of continuing education courses approved by the commission.

Administrative rules in Indiana cite the portion of Indiana law that grants the authority for the rule. IC 4-31-6-2, which is cited as the authority, states that the IHRC shall establish rules for “(1) procedures for license applications; and (2) license fees.” Our big question is how any continuing education requirement falls into the category of “procedures for licensing applications.” So, where did this administrative rule come from?

This particular administrative rule is almost word-for-word what the Association of Racing Commissioners International put forth as a “Model Rule”:

“Beginning no later than January 31, 2012, in order to maintain a current license, trainers must complete at least four (4) hours per calendar year of continuing education courses approved by the ARCI or the commission in that jurisdiction.”

At present, the main issue is that no other major racing state has approved a similar rule. When we talked with Laura Plato, Director of Operations at the National Horsemen’s Benevolent and Protective Association, she was unaware of any other state with a continuing requirement. Since talking with Ms. Plato, we’ve come to find out that the State of Montana has a similar continuing education rule for trainers.

Using Montana as an example, let’s assume that a trainer from Montana who has satisfied Montana’s continuing education requirement comes to Indiana for a race. Can this trainer get an Indiana license? As you can see from Indiana’s rule, any continuing education program has to be approved by the Indiana Horse Racing Commission. It’s doubtful that a continuing education program in Montana was submitted to the IHRC for approval. Also, where is the list of all the continuing education programs currently approved by the IHRC? Now, imagine Bob Baffert flying in from California, a state without a continuing education requirement, for the Indiana Derby only to find out that he needs four hours of CE before he can be licensed.

In a conversation with the Groom Elite Executive Director, Reid McLellan, he felt that the concept of continuing education for trainers was generally a good idea. (The Groom Elite program is essentially a national continuing education program.) However, he also felt that any rules should be delayed until the industry has built an infrastructure to actually create readily available, approved continuing education programs for all racing jurisdictions. We agree. This rule will have a serious effect on those trainers from out-of-state attempting to get a license in Indiana. With the flat racing breeds being reliant on shippers, this rule is a potential deterrent.

The IHRC or the executive director has the authority to waive a rule “…if compliance with a rule is impractical or unduly burdensome…” but such a waiver has to be requested. A waiver on a case-by-case basis opens this rule to selective enforcement. All administrative rules should be applied evenly and fairly, and in this particular case, the rule should be applied on an ‘all or nothing’ basis to be fair to everyone. This is the only way to make sure that the highest standards and the greatest level of integrity is achieved. We are suggesting that the implementation of this administrative rule be delayed into the future until there is a practical and effective way to deliver approved continuing education to ALL trainers, regardless of where they are based.