HISA | Horse Racing Free Tips

Letter to the Editor: Eric Ward

I have been following with interest the interviews with Liza Lazarus in the TDN. Excellent stuff, particularly today's piece concerning doping procedures.

I sincerely hope the aptly-named Ms. Lazarus can bring racing back from the dead and I applaud the new transparency of publication of test results along with the accelerated hearing and adjudication timelines. A great step forward.

However, I can't see the advantage of reducing possible sanctions for controlled therapeutic medication offences to make a distinction between such offences and those concerning banned substances.

This is a bit like reducing the penalties for DUI Alcohol, simply to highlight the difference between driving drunk as opposed to driving whilst stoned or under the influence of other Class A narcotics…Such a law would hardly decrease DUI Alcohol cases and the related traffic accidents!

Furthermore, in racing circles, the proposed reduced therapeutic medication sanctions would certainly increase the use of barrel-bottom-scraping excuses like the ones trotted out by certain individuals over the last few years. And that's without even considering the 'cocktail' masking effect that certain PMs might have on administered PEDs.

Eric Ward

Gaillac, France

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Lazarus on HISA Anti-Doping and Medication Control

Bit by bit, the pieces of the puzzle are slotting into place for the Anti-Doping and Medication Control (ADMC) component of the Horseracing Integrity and Safety Act, set to go into effect at the start of next year.

Last month, that program was designated an agency to officially run it–namely Drug Free Sports International, an organization that has helped administer drug testing programs to a slew of major human sports leagues.

Then, last week, the draft ADMC rules were for put out public comment. These draft rules can be found here.

Adolpho Birch, Chair of HISA's ADMC Committee, concurrently issued a letter outlining the primary changes to the revised ADMC rules as compared to the draft rules previously issued, when the United States Anti-Doping Agency's (USADA) appeared set to become HISA's enforcement agency.

In the letter, Birch points out that possible sanctions for controlled therapeutic medication violations have been reduced, to make a clearer distinction between medication offenses where banned substances are administered, and those when controlled therapeutic substances have been given.

Furthermore, in the event of a positive test result and a request for a B sample analysis, someone from the enforcement agency itself will choose the laboratory, which may be a different laboratory from the one that did the initial analysis.

Tuesday morning, HISA CEO Lisa Lazarus held a media Q&A to discuss the draft ADMC rules further. The following is a summary of her comments.

Responsible Persons

Lazarus provided interesting context to the reasons underpinning the need for trainers and owners to maintain daily treatment records for the horses in their care, a basic outline for which can be found here.

The registration system designates a responsible person for each horse. And that in turn places the burden on the responsible trainer or owner to make sure that they keep detailed records and documentation–essentially, run a “tight ship,” as Lazarus put it.

In the event of a medication violation, therefore, the HISA Authority can request these documents and records, “and those records can become part of the case,” said Lazarus.

In relation to this, Lazarus also expanded on HISA's “whereabouts” program, which essentially ensures that all horses under HISA's remit are accounted for at all times.

In the first phase of the whereabouts program, set to go into effect early next year, responsible persons are required to submit a whereabouts filing if they remove a horse from a racetrack or registered facility.

In other words, said Lazarus, “If you take a horse to a private facility or a private farm, you have to notify us.” And there are possible penalties for non-compliance, including potential fines for failure to submit a whereabouts filing.

However, failure to produce a horse for drug testing results in a presumptive two-year violation (pending a hearing), irrespective of any test result.

“If you take a horse off a public racetrack where we know where the horse is, you don't tell us where the horse is with the whereabouts filing, we look for the horse, we reach out to the Covered Person–we're going to have access to all of this through our database–and they don't produce [the horse] immediately for testing, then, it's a presumptive two-year penalty,” said Lazarus.

Ultimately, said Lazarus, the plan is for a system in place that identifies the whereabouts of any covered horse at any time.

“But one of the things we want to understand and see is whether or not we can really just mine that data from existing resources without putting a paperwork burden on participants,” she said.

Case Management

Before diving into this section, there are some important nomenclature changes to note, as compared to the previous draft rules' use of “primary” and “secondary” substances.

Under these revised draft rules, “prohibited substances” is an umbrella term for anything that shouldn't be in a horse on race day. Banned substances refers to doping substances, while controlled medications are essentially therapeutic substances.

A list of banned and controlled substances, along with possible sanctions in the event of a positive test result, can be found here.

Lazarus provided a snap-shot of the case management process.

In the event a horse tests positive for a banned substance like a steroid, an anabolic agent or a growth hormone, the responsible person is immediately suspended until a hearing takes place.

“The presumption is that this is a two-year sanction,” said Lazarus.

However, that two-year sanction can be reduced if the responsible person can show “no fault or no significant fault,” said Lazarus, adding how any penalty reduction is predicated upon the responsible person proving how the substance got into the horse's system in the first place.

“So, for example, if you're in a situation of a steroid [positive] and you want to argue that somebody gave the horse a steroid without your knowledge, you have to actually prove that [scenario] to the confidence and satisfaction of the hearing panel,” said Lazarus, who also explained how there will be potential four-year bans in the event of “aggravating circumstances” like trafficking, evading sample collection and tampering with samples.

Public Disclosure of Test Results

Under USADA's version of the ADMC program, one rather controversial component concerned how A samples results weren't necessarily going to be automatically disclosed to the public.

But Lazarus pointed to a change of tune, with A sample results now indeed set to be made available online.

“You'll know the covered person, covered horse, and the substance that was detected in the sample,” she said. “You'll be able to follow the case essentially as it goes through the various steps. [For example,] if there's a hearing to lift a suspension that'll be recorded, the decision will be recorded,” she added.

Shortened Adjudication Timelines

The timeline to hear and adjudicate cases will be “incredibly reduced” when compared to the current model at the individual state level, said Lazarus.

After a hearing, for example, the arbitrator will have to issue a decision within 14 days. In the appeals process, defendants have 30 days to file an appeal to the charges, and then, a hearing must happen within 60 days after initial notice.

When asked if the tightened system provides adequate time for defendants to mount a fair defense–especially in complex cases–Lazarus said that cases will be adjudicated on an individual basis, with wriggle room given in “exceptional circumstances” so as not to compromise due process.

That said, the truncated timeline–along with any provisional suspension in the event of a banned substance violation–could also act as an incentivizing lever, said Lazarus.

“If you're dealing with a two-year penalty and it's a banned substance, you're going to be suspended during the case processing scheduling period, and so they're probably going to be very motivated to have it heard quickly as well, so, it also protects the participants,” she said.

Registration Numbers

According to Lazarus, nearly half the horses and covered persons who need to be registered by July 1 have done so. However, racing offices will soon provide a “can't race flag” if a horse that is entered to race is not registered with HISA, she said.

This is intended more as a prompt, said Lazarus, as it won't necessarily affect the horse's eligibility to race, just as long as that horse is, indeed, registered by July 1.

Drug Testing

The actual ADMC testing program is still being developed, said Lazarus, and so, specifics are thin.

That said, in the past various officials have suggested that under HISA, all winners won't necessarily be tested post-race–something of a departure from the current model.

Lazarus indicated, however, that indeed, the post-race drug testing net could still accommodate all winners.

“We're trying to balance a robust testing program that has a deterrent effect with the intelligence-based advantages you get from looking at intelligence metrics,” said Lazarus.

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HISA Questions and Answers: Part Two

This last week has witnessed a flurry of developments and information drops as the countdown to July 1–the official take-off for the Horseracing Integrity and Safety Act (HISA)–continues apace.

Just last Friday, for example, HISA representatives fielded questions in an online industry forum, while the law's draft Anti-Doping and Medication Control (ADMC) rules have been issued for public comment.

HISA's official website can be found here, while the online registration portal can be found here.

Aside from providing a cheat sheet to help guide industry participants through the launch, TDN has been fielding unanswered questions that industry participants have about the process to register, and about the new playing field come July 1, forwarding them to HISA for response.

TDN published the first batch of questions last week. The latest batch is posted below, and includes this registration warning:

“Beginning July 1, 2022, horses will not be allowed to run in a race if the trainer has not registered the horse with HISA.”

Some of the following questions have been edited for brevity and clarity. If any submitted questions aren't answered here, we will endeavor to include them in the next batch.

Question: My question concerns horses at a farm or a lay-up facility. While it doesn't look like everyone employed at one of these places will need to be registered as a covered person, some of these people (like farm managers and veterinarians) will have a lot of responsibility over prescribed medications and veterinary treatments given to the horses in their care.

I see that there are important lay-up and treatment records that need to be made available to HISA. And so, if some of the people administering treatments and medications at a farm or facility aren't registered as “covered persons” under HISA, who's going to be ultimately responsible for what goes on there? The trainers? The owners?

HISA: You're correct, most of the employees who work at farms and lay-up facilities are not required to register with HISA. Employees that are licensed with a State Racing Commission and work directly with covered horses are required to register with HISA. For example, if a veterinarian is licensed by a state racing commission and is treating a covered horse at a lay-up facility, he/she is required to register with HISA.

The responsible person, usually the trainer, must obtain and maintain all exercise and medication treatment records for horses that are at farms, lay-up facilities and training centers. In the circumstances that the trainer is not the responsible person for the horse, the owner will be responsible for maintaining all exercise and medication treatment records for horses that are at farms and lay-up facilities.

Q: According to the jockey whip rule, in certain violations, the owner loses the purse. My understanding is that it's just the purse that's lost, while the horse keeps its place. If that's correct, where will the purse money go?

H: There are three classes of jockey crop use violations. Class 1 violations do not result in a loss of purse. If a crop violation is a Class 2 or Class 3 violation, the horse will be disqualified from purse earnings.

HISA's Racetrack Safety Committee will provide guidance on how that purse money will be used/allocated in the coming weeks.

Q: What if I am confused by the new regulations and I was supposed to register, but I don't? What are the consequences? And who enforces them?

H: Beginning July 1, 2022, horses will not be allowed to run in a race if the trainer has not registered the horse with HISA.

HISA is focused on getting as many people and horses as possible registered before July 1. This includes educating, assisting and engaging with stakeholders across the industry to ensure everyone is well-informed and well-equipped to get registered as soon as possible.

Q: Once we register ourselves, with our physical address being one of the requirements, we are authorizing the 'Authority' free access to our homes/farms. Please can you explain in detail why?

H: HISA will always exercise its authority in good faith and for the benefit of the sport. The Act passed by Congress provides that the Authority shall develop uniform procedures and rules authorizing “access to offices, racetrack facilities, other places of business, books, records, and personal property of covered persons that are used in the care, treatment, training, and racing of covered horses.”

Our original regulation stated: The Authority “[s]hall have free access to the books, records, offices, racetrack facilities, and other places of business of Covered Persons that are used in the care, treatment, training, and racing of Covered Horses, and to the books, records, offices, facilities, and other places of business of any person who owns a Covered Horse or performs services on a Covered Horse.”

The FTC in approving the Enforcement Rules noted that commentators who objected to this rule were really objecting to the Act since our rule tracked the Act. Despite the rule being approved by the FTC, we have revised the rule and will be sending the revisions to the FTC in the next few days. The relevant rule now states:

(1) Shall have free access to:

(i) with regard to Covered Persons, books, records, offices, racetrack facilities, and other places of business of Covered Persons that relate to the care, treatment, training, and racing of Covered Horses, and

(ii) with regard to any person who owns a Covered Horse or performs services on a Covered Horse, books, records, offices, facilities, and other places of business that relate to the care, treatment, training, and racing of Covered Horses.

Even if the revised rules are not approved by the FTC by July 1, 2022, HISA will abide by these portions of the amended regulations.

And finally, it is important to note that the language that Congress utilized is not novel. For example, current Kentucky law utilizes similar language as HISA's original regulation. It states:

“The racing commission, its representatives and employees, may visit, investigate and have free access to the office, track, facilities, or other places of business of any licensee, or any person owning a horse or performing services regulated by this chapter on a horse registered to participate in a breeders incentive fund under the jurisdiction of the racing commission.”

Q: Rule 8400 Investigatory Powers section a) subsection 1). This rule also allows HISA to seize “medication, drugs, paraphernalia, or substance in violation or suspected violation of the 'Authority,” along with all your books and files.

In every state, it's against the rules for any person not a vet to have injectables, needles, and syringes on the track. But under this rule, if you're in a rural area (which most farms, by definition, are) and have such perfectly legal medications on your property to treat your horses in an emergency when a vet may be hours away from you, you would be in violation of the “Authority's” rules and subject to seizure, fines, and suspension of racing privileges.

If accurate, this makes absolutely no sense, so please can you provide the reasons behind this?

H: HISA's regulations regarding hypodermic needles and syringes apply to Covered Racetracks and Covered Training Facilities. These regulations do not apply to farms.

Q: Under the “Authority's” revised rules (not yet submitted to the FTC) weekends and holidays are no longer “working days” and won't be considered “counted” days. If I'm reading this right, if you receive a five-day suspension starting Tuesday, you cannot return to work on Sunday because it's not a “working day”? And by waiting until Monday, you will have served six days? In horse racing, every day is a working day!

H: This is incorrect. The new provisions for calculation of time addresses only the response dates set forth in the Enforcement Rules.

For example, it makes clear that if an individual is given a certain number of days to file an appeal or file a brief and that day falls on a holiday or weekend then the deadline is the next working day. The calculation of time rule in the Enforcement Rules has nothing to do with the numbers of days someone serves for a suspension.

Additionally, this method of calculating time helps horsemen by giving them extra days to respond and not requiring them to count weekends which are often busy race days.

Q: I read the Q&A, and the answer to who needs to register says someone who works regularly in the stable area. Others who have access but don't work in the stable in the normal course of their job do not have to be registered. Access to the stable is still controlled by state commission licensing. This clears it up except their site says the complete opposite. Their site says any employee who has any access to the stables must register. Can you please try to clarify the clarification which clarified nothing?

H: This language has been updated on the HISA website. To be clear: you must register as a Covered Person if you are licensed by a State Racing Commission, unless you have no contact with Covered Horses and you do not have access to the restricted areas of a racetrack in the ordinary course of carrying out your duties. This means that if your job does not regularly require you to access the stable area in the normal course of your work, you are not required to register. Examples of other persons who do not need to register include, but are not limited to: vendors of goods or services and racetrack employees or contractors who do not have access to restricted areas (i.e. food service providers, ticket takers, mutuel employees, etc.). EVERYONE ELSE MUST REGISTER AS A COVERED PERSON.

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Missing July 1 HISA Deadline Could Result in Scratches

Facing a July 1 federal mandate to get all licensed personnel and actively racing Thoroughbreds registered in accordance with the Horseracing Integrity and Safety Act (HISA), representatives from that organization's Authority team fielded questions from industry participants Friday in an online “town hall” forum, where the most pertinent query had to do with whether horses will get scratched if their online HISA registrations are incomplete by that deadline.

The short answer, according to the HISA Authority's chief executive officer, Lisa Lazarus, is yes.

But her slightly longer explanation tells us the Authority is trying to give trainers–who are additionally tasked with registering all horses under their care and maintaining daily records of their conditioning–a grace period during which they will be prodded to comply so scratches won't have to happen.

“A horse will only be scratched if it or the trainer is not registered,” Lazarus said. “What we tried to build in was kind of a safety mechanism for you in these early months, which is you can enter a horse, but when you enter a horse [without HISA registration], the racing office will get a flag that says, 'can't race.' They will then reach out to you and say, 'You're in the race, but you've got to get this done by start time, or race time, or else you're scratched. Based on most racing calendars, that will give you a couple days, at least, to do it. And that will essentially be the warning.”

But horses and trainers aren't the only ones required by federal law to be registered under HISA. Everyone who holds a state racing commission license–including owners, jockeys, jockey agents, exercise riders, stable employees, pony personnel, outriders, racing office staff, veterinarians, farriers and backstretch vendors–have to sign up too.

And although it won't result in a scratch, Ann McGovern, representing HISA's Racetrack Safety Committee, added that, “if your jockey isn't registered by scratch time, you'll have to have a rider change.”

The Authority's reps underscored that the newly operational HISA registration portal is a work-in-progress endeavor, and it's scheduled to be updated with a slate of changes by Monday based on feedback from users who've already registered themselves and their horses. Additional tweaks will be rolled out as the process evolves.

The HISA speakers acknowledged the daunting nature of the work that looms in the weeks ahead, and made it known that the Authority will be depending upon the input of horsemen and women to help make the process less time consuming.

“We know we're going to make mistakes. We just do. We're dealing with a really tough timeline,” said John Roach, HISA's general counsel. But, he added, “We'll talk to you. We'll figure it out. We'll work collaboratively with you. And I hope that even when we disagree about things, you know that we will listen and we'll try and do the right thing.”

Roach continued: “You should go ahead and get all your registration done. It's important to get it done before July 1. But we understand that this is a new system; this is new technology. So we are not going to stop anybody from entering.”

Other complexities within the HISA framework still seem a little shy on details–at least based on the way they were discussed during the June 3 webcast.

Take a trainer's maintenance of records, for example. Here's how Roach put it:

“Trainers are not responsible for [providing] any kind of information or data to HISA. You are required under the rules to maintain certain records. They have to be available for inspection. The vets will have to do the inputting. But as it relates to your records, you just need to maintain them. The safety rules set forth what you are to maintain.”

But then McGovern interjected to say that when a horse gets claimed and goes to a new owner, additional trainer responsibilities will come into play.

“If a horse is claimed, you are responsible for making a copy of those [training] records and giving that, along with the veterinary records, to the new trainer of the claimed horse,” McGovern said.

One audience member wanted to know how far back the training records have to go. McGovern answered 30 days. Then someone else asked for a clarification of what “training records” actually mean.

“Whatever records you think would be necessary,” McGovern answered. “But in our minds, you know the big board on the end of everyone's shedrow that has the horse's name, [and notations of] 'jogged, worked,' all that good stuff? [Whether the horse] had a supplement in his feed. Did he hand-walk that day? What did you do with the horse on a daily basis? You could take a picture of that board and put it in a file every day…. If that's what you want to do, that would be fine too.”

If it struck anyone on the webcast as unusual that a digital image of a magic-markered white board hung in someone's barn would suffice as a precise “training record” under the federal HISA guidelines, no one said so.

Nor did any of the Authority reps go into detail about exactly how or when trainers would be required to transfer those records to the people who claimed the horse.

Other questions from industry participants focused on the registration process itself. Each horse for example, must have not only a HISA registration, but also a “designated owner” and a “responsible person” associated with it.

But what if five people own a horse in partnership? Do all five have to be registered? And who among them gets listed as the designated owner?

“There only needs to be one designated owner to take responsibility for the horse,” Lazarus said. “[Partners] can decide amongst [themselves] who that's going to be. We do want all owners to register. But with regards to the initial enforcement piece, et cetera, really we're going to be focusing on the designated owner.

Added Roach, “If [an] owner is not licensed because they own such a small percentage that they're not required to be licensed [at the state level], they do not have to register.”

Lazarus also attempted to smooth over confusion related to the differences between being licensed at the state level while also needing to meet the federal requirement to be registered under HISA.

“This is a one-time registration. It's not an annual registration. And it has no actual connection to your state license,” Lazarus said.

Then why is a state racing license identification number listed as one of the HISA registration requirements?

“The only reason that we ask for a state license number is to make the whole process easier for you,” Lazarus said. “If you give us a state license number, we can go into the ARCI system and help pre-populate your information [so it gets auto-filled on the online form]. It's a one-time registration, a one-time number [provided by HISA]. Once you do it, unless something dramatically changes, you never have to do it again. And that [HISA] number stays with you forever.”

What if you are licensed in multiple states? Which license number do you provide to HISA?

“You can enter any license number,” from any state, Lazarus replied. “That is just to help [the system] figure out who you are, to make your input time shorter and to make it a less onerous process for you. Later though, there's a separate box that asks you to check all the states that you're licensed in. When you get to that screen, you should check all the states that you're licensed in. You don't need to provide the numbers.”

There were also concerns about whether it's a trainer's responsibility to register their licensed employees. The trainer is not required to do that, but the Authority is asking trainers to encourage their staff to sign up themselves.

“There's no legal consequence for a trainer if an employee doesn't register,” Roach said. “There may be a consequence for the employee depending on what activity they want to engage in and where they want to be and go.”

There was also uncertainty among trainers about what happens when a horse leaves the track to go to a lay-up facility or offsite training center. Who becomes the responsible party?

“If the farm manager is a registered person, and the [horse's] owner is comfortable with making that the responsible person, that can happen if the horse is going to be there for some time,” McGovern said. “If not, the trainer would remain the responsible person and would be responsible for getting the [training] records from the farm manager.

Roach clarified whether or not caretakers at a farm would also have to register under the HISA system.

“If the farm employees are licensed by [a] racing commission, and they have contact [with] Thoroughbred horses, they need to be registered,” Roach said. “If they are not licensed, they do not have to register with [HISA]. No one that is not licensed [by a commission] has to register with us.”

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