KTFMC Meeting: Equine Veterinary Changes, Implications for Farm Managers

by Sara Gordon and Katie Petrunyak

LEXINGTON, KY-The Kentucky Thoroughbred Farm Managers Club (KTFMC) held its first meeting of the year on Tuesday at Keeneland. The event was conducted jointly with the Kentucky Association of Equine Practitioners (KAEP) and the over 200 in attendance represented both organizations. Members of the Godolphin Flying Start and Kentucky Equine Management Internship programs were also on hand.

Recent changes and trends in the equine veterinary field were a focal point of the evening, along with topics including equine litigation and liability, navigating equine veterinary practice changes and the equine veterinarian shortage.

KTFMC President Gerry Duffy said their board brought up the issue of the equine veterinary shortage as a potential topic for their monthly meeting and from there, they partnered with the KAEP knowing that the subject would be relevant to both organizations.

“We know that the vet-farm manager relationship is so important and we have been hearing statistics about how they're struggling to get equine practitioners and of the ones they get, there's a high degree of partition,” Duffy explained. “We thought it would be a good topic to discuss at the meeting and when we got talking to the KAEP, they were having a meeting focused on equine veterinary litigation and liability so we thought, why not bring the two together?”

A 'Q and A' session on the Horseracing Integrity and Safety Act (HISA) was also conducted with HISA's Director of Equine Safety and Welfare Dr. Jennifer Durenberger and HISA Representative Marc Guilfoil, bringing forth a host of questions on the new responsibilities that those overseeing horses outside of the racetrack would take on if and when HISA comes into authority.

Evolving Landscape of Equine Insurance Coverage

Equine attorney Mike Casey of Casey Bailey & Maines, PLLC, based in Lexington, was the first speaker to the podium, leading a discussion on the evolving landscape of equine insurance coverage and the particulars of filing a claim under those policies.

Casey emphasized the importance of the relationship between vets and farm managers, particularly when it comes to how the vets document interactions with their patients and handle subsequent care when called out to the farms. This is all information that is not only necessary for those directly connected to the horse, but also required when it comes to instances of filing a claim, such as equine mortality, with an insurance agency.

Common issues that arise involve how often the vet visits the patient, varying whether the visits are routine or for a specific health issue, which correlates with the problematic pressure to prescribe medication without examining the patient first.

“It is critically important to make sure when you're administering medications that you have that temporal visit with the horse,” said Casey.

He also touched on the growing issue of using medication on a horse that it was not originally prescribed to.

“I probably see that more today, in the last two or three years, than the last 10 years before.”

All of these issues were weighed against what the insurance company would be looking for when handling a claim, which always leads back to the importance of maintaining precise, updated documentation. Medical records must include enough detail that anyone checking on the horse should be able to know exactly what their health status is, what treatments they have received in the past and how things should be handled for that particular patient going forward.

“Farm managers need to call the vet and make sure they see the horse the next day. It'll hopefully avoid a catastrophic outcome and it is in compliance with regulations that we know will have heightened scrutiny as we go to HISA, or as KAEP redrafts regulations,” said Casey.

When dealing with mortality insurance claims, farm managers should take the time to read through the entire policy in order to understand what is expected of them when dealing with the insurance company. In that same vein, all communication with the designated representative of the insurance company should also be documented, to avoid any issues when filing a claim down the road.

Casey explained why understanding any negating factors, such as instances of failure to provide improper care, is crucial. His example touched on use of a medication on a horse that it was not prescribed to, which could fall under the realm of an “intentional act” of improper care. In most cases, “proper care” is defined after the fact.

“We want to be able to connect the prescription to the horse, to the vet's visit, to prevent application of the unauthorized medication claim,” he said.

Communication and proper documentation are the key points when it comes to vets and farm managers abiding by regulations, maintaining the proper care for the horses in their charge, and ensuring that in the case of any insurance claims filed, everything is presented properly to guarantee a seamless process.

According to Casey, there is no such thing as too much communication, using the example of emailing the insurance agency a summary of the vet's visit for annual vaccinations to prove his point. Farm managers must also understand that a vet isn't going to report directly to the insurance agency in the case of a claim, so they must maintain their own day-to-day records as well.

“We've got to establish a dialogue for this industry, [when it comes to] what is reasonable, proper and the routine method of doing business. It is important that insurers play a role in this,” said Casey. “It's too easy to use the sins of others in the industry to say, 'That's why we have a heightened medication claim.'”

As he concluded his presentation, Casey reiterated the importance of ensuring all treatment decisions and medications are being administered based on the physical examination of that horse.

 

KTFMC President Gerry Duffy with former president John Williams | KTFMC

Equine Practitioners Discuss Vet Shortage

While most meeting attendees were aware of the equine veterinary shortage, the statistics shared by Hagyard's Dr. Luke Fallon were staggering.

Fallon said that according to a recent survey conducted by the American Association of Equine Practitioners, by 2030, equine medicine will need over 5,000 veterinarians to meet the growth in demand. Currently there are approximately 3,650 practicing equine veterinarians in America.

Additionally, of the 3,300 veterinary graduates each year from U.S. schools, only 1.3% will enter the equine profession directly. While 4.5% will enter an internship program, 50% will leave the equine profession within five years.

“If you do the math, the shortage of equine veterinarians is already here,” Fallon said. “Why are equine vets leaving the profession? Burnout is one of the key factors. It is a demanding job with long hours and low starting salaries compared to small animal jobs, which often include a signing bonus as high as $200,000 for new graduates.”

Fallon explained that many young students enter veterinary school with the dream of becoming an equine practitioner, but turn to small animal medicine because it is a more logical step financially. He said that equine veterinarians usually start at between a third and half of the initial salary of a small animal veterinarian.

Fellow Hagyard veterinarian Rhonda Rathgeber joined the conversation to discuss a few of the new initiatives Hagyard is working on to encourage veterinary students to consider a career in the equine industry.

Hagyard has enhanced their recruitment efforts by hosting student weekends to show how their facility operates and share details about their externship program. Although the initiative has been hurt in recent years due to the pandemic, it has led to increased numbers in their externship program.

“We are up to 150 externs this season, so if your veterinarian has an extern or a student with them, please be patient,” Rathgeber advised. “We've done a lot of work to get them to come and see what it's really like.”

Hagyard has also increased their outreach through college visits. Last year, they visited a third of the veterinary colleges in the country. Additional recruitment efforts include a podcast, their participation in the annual Opportunities in Equine Practice Seminar hosted by Rood & Riddle Equine Hospital and also hosting their own undergraduate seminars for pre-vet students.

Jim Heird, PhD, rounded out the session to discuss one promising step toward overcoming the shortage. Heird is a member of the advisory council for Lincoln Memorial University's Equine Veterinary Education Program (EVEP), which provides an accelerated, six-and-a-half year path to a Doctor of Veterinary Medicine degree. Students go through the undergraduate program at LMU and as long as they maintain a 3.35 GPA, they are automatically accepted into the school's veterinary program.

The EVEP places an emphasis on their students developing hands-on horsemanship skills. Students will work on-farm summer internships during their undergraduate years and then will intern at clinics during their summers in the veterinary program.

Heird said that LMU produces more equine veterinarians than any other school in the country.

“When I think about my career, I don't know of anything that I've done that has as much impact on the future of this industry than this program could have,” he said. “That's why I'm so passionate about it.”

 

HISA's Director of Equine Safety and Welfare Dr. Jennifer Durenberger and HISA Representative Marc Guilfoil

Concerns for Consignors and Managers Brought to Light During HISA Q and A

The evening concluded with a focus on HISA, where attendees were given the opportunity to ask Durenberger and Guilfoil questions. Pertinent to those in attendance, many questions focused on the regulations for those dealing with horses covered under HISA, outside of the track, such as consignors at the sales or farm managers handling lay-ups at the farm.

Though HISA has already released handbooks for racetracks, racetrack maintenance, regulatory veterinarians, attending veterinarians and trainers, Durenberger did say that handbooks for groups such as farm managers, consignors and off-track vets were in the works.

In the meantime, she emphasized that it would be the responsible party's job to update any records related to a “covered horse” in the HISA online portal, as those records would not be required until the horse returned to the racetrack. In those cases, the responsible party would more than likely be the trainer.

Further concern was expressed for clarifying who the responsible party would be, depending on different situations when the horse is not at the track, and specifying the time requirements for submitting any updates to a horse's medical record. Durenberger assured those asking these questions that further details would be provided, in hopes of clearing up any misunderstanding.

 

For almost 100 years, the KTFMC has helped build community and camaraderie among farm managers while also working to find solutions for challenges that these managers face. Their current officers are President Gerry Duffy (Godolphin), Vice President Adrian Wallace (Coolmore), Treasurer Charles Hynes (Coolmore), Secretary Molly Harris (Shawhan Place) and Sergeant-At-Arms B.G. “Scooter” Hughes (Hughes Racing Stable). The club boasts over 500 members and hosts a number of annual charitable fundraisers including a golf scramble, a trail ride, a 5k run, and more. For more information on the KTFMC or to apply for membership, visit www.ktfmc.org or email info@ktfmc.org

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Weekly Stewards and Commission Rulings, Jan. 10-16

Every week, the TDN publishes a roundup of key official rulings from the primary tracks within the four major racing jurisdictions of California, New York, Florida and Kentucky.
Here's a primer on how each of these jurisdictions adjudicates different offenses, what they make public (or not) and where.
With the Horseracing Integrity and Safety Act (HISA) having gone into effect on July 1, the TDN will also post a roundup of the relevant HISA-related rulings from the same week.

California

Track: Santa Anita
Date: 01/13/2023
Licensee: Tim Yakteen, trainer
Penalty: $1,000 fine
Violation: Late notification of gelding operation
Explainer: Trainer Haitham “Tim” Yakteen, who entered the horse Code Runner, in the eighth race on November 6th, 2022, at Santa Anita Park is fined $1,000.00 for violation of California Horse Racing Board Rule #1865(e)(2) (Altering Sex of Horse – true sex not reported) necessitating a late declaration.

NEW HISA STEWARDS RULINGS
The following rulings were reported on HISA's “rulings” portal, except for the voided claim rulings which were sent to the TDN directly. Some of these rulings are from prior weeks as they were not reported contemporaneously.
One important note: HISA's whip use limit is restricted to six strikes during a race.

Violations of Crop Rule
Aqueduct
Jackie Davis – violation date January 5; $250 fine and one-day suspension, 7 strikes
Andy Hernandez – violation date January 13; $250 fine and one-day suspension, 7 strikes

Golden Gate Fields
Silvio Amador – violation date January 6; $250 fine and one-day suspension, “Use of Riding Crop – Three Strikes in a row”
Silvio Amador – violation date January 6; $250 fine and one-day suspension, 7 strikes

Oaklawn Park
Angel Rodriguez – violation date January 13; $250 fine and one-day suspension, “Raising his wrist above his helmet when using the crop”
Isaac Castillo – violation date January 14; $250 fine and one-day suspension, 7 strikes

Santa Anita
Ramon Vazquez – violation date January 8; $250 fine and one-day suspension, 7 strikes
Umberto Rispoli – violation date January 8; $250 fine and one-day suspension, 7 strikes
Edwin Maldonado – violation date January 13; $250 fine and one-day suspension, 7 strikes

Tampa Bay Downs
Robert Reeves Jr. – violation date January 13; $250 fine and one-day suspension, 9 strikes

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HBPA Plaintiffs Tell Fifth Circuit New Law ‘Does Not Fix’ HISA’s Problems

As the Fifth Circuit United States Court of Appeals weighs a motion by the Horseracing Integrity and Safety Act (HISA) Authority to vacate its recent opinion that HISA is unconstitutional, a plaintiff team led by the National Horsemen's Benevolent and Protective Association (NHBPA) on Friday urged the court not to do that, arguing that a new federal law passed two weeks ago to amend the operative language of HISA “does not fix” three alleged constitutionality issues.

“This Court's opinion identified three distinct problems with HISA: 'An agency does not have meaningful oversight if it does not write the rules, cannot change them, and cannot second-guess their substance,'” the NHBPA and its co-plaintiffs wrote in a Jan. 13 response.

“Congress's recent tweak to HISA fails to fix the second problem and does nothing to address the first problem or the third,” the filing continued.

“Under the amended HISA the Federal Trade Commission (FTC) still cannot initiate new rules and still cannot second-guess their substance beyond 'consistency review.' And though it can now modify promulgated rules, the Authority's rules will govern for a while even if the FTC eventually changes them,” the response stated.

“In addition, the amendment reduces the FTC's oversight by eliminating the commission's power to issue interim final rules [and] ultimately, the overall purpose of HISA remains to delegate legislative power to a private corporation to 'develop and implement' programs to regulate the horseracing industry,” the filing stated.

“The prior [Fifth Circuit] opinion was a correct statement of the law and the facts at the time it was issued, and the Authority has not borne its substantial burden to show the 'extraordinary remedy' of vacatur is equitable in this instance,” the response stated.

The underlying lawsuit was initiated by the NHBPA and 12 of its affiliates against personnel from the HISA Authority and the FTC on Mar. 15, 2021, bringing anti-constitutionality claims under the private-nondelegation doctrine, public nondelegation doctrine, Appointments Clause, and the Due Process Clause.

On Mar. 31, 2022, a U.S. District Court judge dismissed that suit, writing in an order that “despite its novelty, [HISA] as constructed stays within current constitutional limitations as defined by the Supreme Court and the Fifth Circuit.”

The HBPA plaintiffs appealed that decision, leading to the Fifth Circuit's reversal on Nov. 18.

But by amending HISA and passing it into law as part of a much broader year-end spending bill, the HISA Authority argued in its Jan. 3, 2023, “motion to vacate” that Congress and the President have done their parts to clear up any lingering constitutional ambiguity, and now the Fifth Circuit is obliged to do its duty to “say what the law is” with regard to the rewritten HISA.

Also on Jan. 13, the state of Texas and its racing commission (both of which had been allowed to join the plaintiffs as “intervenors” with an interest in the outcome), filed a separate response to the HISA Authority's motion to vacate.

“This Court should deny the Authority's motion,” the Texas plaintiffs stated. “Because the Authority tellingly does not assert that Congress's amendment moots this lawsuit…immediate vacatur is not warranted. Instead, as this Court has already remanded the case for further proceedings in the district court, this Court likely should follow its ordinary practice, issue its mandate, and allow the district court to consider the HISA amendment's impact on the merits of this suit in the first instance.”

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Sixth Circuit Parties Argue Whether New HISA Law Renders Anti-Constitutionality Claims Moot

Parties on both sides of a Sixth Circuit United States Court of Appeals case that seeks to reverse a lower court's decision to dismiss a constitutional challenge of the Horseracing Integrity and Safety Act (HISA) argued via written briefs Thursday as to whether or not a pro-HISA law passed at the tail end of 2022 renders as “moot” any constitutionality claims in the under-appeal lawsuit.

The Jan. 12 briefs were filed in accordance with a Dec. 30 request from the Sixth Circuit to explain how the Dec. 29 signage of the new law (which amended the operative language of HISA) might affect the oral arguments both sides had made in the Sixth Circuit case Dec. 7.

Not surprisingly, the plaintiffs appealing the lower court's ruling–led by the states of West Virginia, Oklahoma and Louisiana–told the court that the anti-constitutionality claims are still relevant.

The defendants–primarily the HISA Authority and the Federal Trade Commission (FTC)–informed the panel of judges that the new law has smoothed over any alleged constitutional issues and paves the way for HISA to move forward.

“The recent amendment to HISA addresses only one of these many constitutional problems,” stated a joint brief filed by all of the plaintiffs, which also include the Oklahoma and West Virginia racing commissions, three Oklahoma tracks, the Oklahoma Quarter Horse Association, the U.S. Trotting Association, and Hanover Shoe Farms, a Pennsylvania Standardbred breeding entity.

“All of HISA's other constitutional defects, however, remain unremedied,” the plaintiffs contended.

The HISA Authority defendants saw it differently, writing that, “Congress's response obviates the principal basis for Plaintiffs' private nondelegation claim in this case, which is predicated on a prior version of HISA that no longer exists.”

In a separate brief, the FTC defendants put it this way: “Congress's recent amendment eliminates any doubt that the private Horseracing Authority 'function[s] subordinately' to the [FTC] in satisfaction of the private-nondelegation doctrine….Congress's grant of general-rulemaking authority to the [FTC] resolves the 'core constitutional defect' plaintiffs purported to identify in support of their private-nondelegation claim….”

The underlying case that the plaintiffs are trying to get overturned via appeal dates to Apr. 26, 2021, when they alleged in a federal lawsuit that “HISA gives a private corporation broad regulatory authority.”

On June 2, 2022, that claim was dismissed by a judge in U.S. District Court, Eastern District of Kentucky (Lexington) for failure to state a claim of action. The plaintiffs then appealed to the Sixth Circuit.

While that Sixth Circuit appeal was pending, the Fifth Circuit came out with its own decision in a similar case against HISA that was led by the National Horsemen's Benevolent and Protective Association (HBPA).

That Nov. 18 Fifth Circuit ruling stated that HISA is unconstitutional because it “delegates unsupervised government power to a private entity,” and thus “violates the private non-delegation doctrine.” The order remanded the case back to U.S. District Court (Northern District of Texas) for “further proceedings consistent with” the Appeals Court's reversal.

But in the interim after the Fifth Circuit ruled and the Sixth Circuit heard oral arguments, Congress in late December amended the operative language of HISA to fix the alleged constitutional defect the panel had identified, and President Biden signed the measure into law as a tiny part of a vastly larger year-end spending bill.

An expected Jan. 10, 2023, mandate issuance date for the Fifth Circuit to enforce its order, has come and gone without any directive from that court that seeks to enforce its anti-constitutionality ruling against HISA. So now the next major court decision on HISA's constitutionality is expected to come when Sixth Circuit issues its order.

The plaintiffs cited specifics about why they believed the new law doesn't alter HISA's alleged unconstitutionality.

“In particular, the FTC still lacks front-end ability to veto the Authority's proposals for policy reasons, a crucial power that the Securities and Exchange Commission (SEC) enjoys when reviewing proposed rules of the self-regulatory organizations that it supervises…” the brief stated.

“The amendment also continues to permit the Authority to exercise numerous executive powers without any supervision or control by the FTC,” the plaintiffs continued. “The Authority continues to have unfettered discretion to bring enforcement actions in federal court and expand HISA's regulatory scope to include any non-Thoroughbred horse breed.

“Finally, and crucially, the amendment does nothing to cure HISA's anticommandeering violation. HISA still pushes the costs of administering HISA onto the States by requiring them to fund the Authority's operations or lose the ability to collect fees for matters that the Authority isn't even regulating.”

The FTC brief also made a comparison between HISA and the SEC, but in a different light.

Because of the new law, the FTC brief stated, “the [FTC's] oversight power is 'now also materially identical' to that of the SEC, a statutory scheme that 'has been upheld against constitutional challenge on many occasions.'”

At a different point, the FTC wrote, “It is unclear whether plaintiffs will continue to press secondary arguments in support of their private-nondelegation doctrine claim. The government has explained either why those arguments fail on the merits, why plaintiffs lack…standing to press them, or both. If plaintiffs continue to urge their arguments despite Congress's amendment to the statute, the Court should reject them…”

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