Despite a near-term national forecast clouded with uncertainty over last week's United States Court of Appeals order declaring the Horseracing Integrity and Safety Act (HISA) to be unconstitutional, California Horse Racing Board (CHRB) commissioners on Tuesday expressed confidence their state will be able to weather the projected turbulence over HISA's in-limbo legality better than other jurisdictions.
The reason, according to staffers and commissioners who spoke during the Nov. 22 monthly meeting, is that the CHRB has been proactively advancing safety and medication rules for the past few years, and a number of those regulations eventually got adopted as models for HISA rules.
So if or when an expected mandate for HISA to cease operations gets handed down by the Fifth Circuit on that mandate's Jan. 10 due date, the CHRB will essentially just go back to relying on a similar, in-state framework of rules that aren't too different from HISA's.
“We've been participating with HISA. We've been supporting them. We will continue to do so until told otherwise,” said the CHRB's equine medical director, Dr. Jeff Blea.
But, Blea added, “It's nice to know [that] in all actuality, HISA's safety program and medication rules are not that far different from where California is.”
Mindful that a Pandora's box of varying legal and political scenarios could still affect the future of HISA between now and when HISA's Anti-Doping and Medication Control rules go into effect Jan. 1, the CHRB voted 4-0 on Tuesday to opt in to the 2023 voluntary implementation agreement that encompasses national oversight by both the HISA Authority and the Horseracing Integrity and Welfare Unit (HIWU), which will enforce the new drug rules.
“Just to clarify, HISA medication rules go into effect Jan. 1, and the court [mandate] is Jan. 10. So those 10 days for sure, we're operating under the medication rules of HISA,” said chairman Gregory Ferraro, DVM. “And then, depending on what [a higher-court ruling or a legal stay or Congressional action] is, we go from there.”
Blea described to commissioners how he was in attendance at the annual convention of the American Association of Equine Practitioners (AAEP) in San Antonio, Texas, on Nov. 18 when news first broke about the HISA unconstitutionality ruling.
Blea said the convention was “fully staffed” with HISA Authority executives at that time, including HISA chief executive officer Lisa Lazarus and HIWU executive director Ben Mosier.
“Thirty minutes prior to the start of the meeting the announcement came out, so it was just a little bit of everybody [being] on their heels,” Blea said. “Their approach was, 'We're moving forward, we're pressing on, we'll discuss these issues with veterinarians and the veterinary community.'
“So right now it's 'business as usual,'” Blea continued. “Everyone's seen what's in the mainstream press, and it's an attorneys' field day. As it stands now, from a medication standpoint, we'll be under HISA rules for 10 days [in 2023] depending on what the courts rule. Same thing with the safety standards.”
Blea noted that even as the AAEP convention unfolded amid the legal blow to HISA, the CHRB was repeatedly referenced during a keynote address for being ahead of the curve on equine safety and welfare initiatives.
And during the professional meet-and-greet portions of the convention, Blea said he repeatedly had his brain picked by colleagues who wanted advice on how to introduce CHRB-styled reforms in their home states.
Amanda Brown, the CHRB's staff counsel, offered a legal perspective on HISA's possible path forward–or what happens if that entity is forced to shut down. She noted that a separate Court of Appeals case over HISA's constitutionality has arguments pending Dec. 7, this time in the Sixth Circuit.
“So there is a chance that the judge there rules [that HISA is] constitutional [and] we have two competing decisions,” Brown said. “Ultimately, I expect they'll ask the Supreme Court to review it.”
But in the meantime, Brown said, “Everything from HISA says that they're still going to roll out the Anti-Doping and Medication Control program Jan. 1 [and] HISA has indicated that they are going to exhaust every avenue to either get a stay or a reconsideration before that time. So it's kind of up in the air what's going to happen.”
Prior to the unanimous vote on the issue, Ferraro asked Brown is there was any legal downside to opting into the HISA and HIWU agreements in the event that those entities do get shut down. According to the HISA budget, California's financial assessment for 2023 is $7,344,139.
“I can't speak to the [CHRB's] payment portion of that, but no, the agreement would be void and there would be nothing for us to enforce,” Brown said. “We'd go back to our California rules, pre-HISA. Which for us, is probably easier than other states.”
Cynthia Alameda, the CHRB's deputy executive director, picked up on the topic of assessments where Brown left off.
“We're collecting payments currently for the first assessment [that covered the final six months of 2022],” Alameda said. “They're coming in a little bit behind, so I don't think that it would be difficult for us to kind of regroup and ensure that all of our stakeholders didn't pay any fees that were unnecessary.
“So I don't think there is any negative in entering into the agreement,” Alameda continued. “It also gives our stakeholders an opportunity to come back in December to present how they would like to fund the assessments. They did it through market access fees on the first assessment, so I'm sure they would need to present that to us as well, just so we're ready in January if everything goes forward.
“If HISA [being] unconstitutional [was upheld], we would cease collecting funds,” Alameda said. “I don't know what would happen with the ones that have already been paid for the first six months, because it was kind of to handle the setup costs, so I don't think those would be recouped. That's just me guessing, though.”
Blea added at a different point in the meeting that there is one difference in the CHRB and HISA rules that he is actively trying to address before it becomes an on-track issue in 2023.
“The confusion for veterinarians is detection time versus thresholds,” Blea said. “The [HISA] detection times are based on a European model. So I'm going to recommend people push their medication administrations back further, and I'm in the process of doing some calculations and trying to figure it out to give them some information proactively to avoid any problems.”
The four CHRB commissioners voting unanimously for the HISA opt-in were Ferraro, Oscar Gonzales, Damascus Castellano and Brenda Washington Davis.
Commissioners Dennis Alfieri, Wendy Mitchell and Thomas Hudnut were absent from the meeting.
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