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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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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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HISA Questions and Answers

Last week, TDN launched a cheat sheet to help guide industry participants through the launch of the Horseracing Integrity and Safety Act (HISA) on July 1.

Since then, we have 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.

Over the weekend, HISA CEO Lisa Lazarus addressed a common registration problem bedeviling the system, with HISA's text message verification codes often been misclassified by telecommunications providers as spam.

In short: While the technical glitch has been fixed, says Lazarus, “it will take more than a week for the fix to fully propagate through these vast systems. Therefore, we have suspended the account verification requirement and continue to secure the accounts using alternate methods.”

The first batch of reader questions TDN has received is posted below alongside HISA's responses. Some of the questions have been edited for brevity and clarity. If any submitted questions aren't answered here, we will endeavour to include them in the next batch.

HISA's formal website can be found here, and the online registration portal can be found here.

Question: The HISA registration process requests that trainers register all 'employees'; the riders my husband uses are independent contractors who ride for multiple trainers. Should he be registering them as 'employees' on the HISA website?

HISA: Trainers are not required to register their employees. However, trainers should ensure that their employees register with HISA. Independent contractors, such as some exercise riders, are responsible for registering with HISA. As the case with the trainer's employees, your husband is not responsible for registering them but should encourage them to do so.

Q: I have a state issued license as a race track management employee. Do I have to register for a HISA license? If so, under what category? What about the many licensed employees in non-management roles? There has been zero information communicated on this issue. This is not non-compliance, but a lack of messaging.

H: Racetrack employees are required to register with HISA if they have a state racing commission license and are directly involved in horseracing. However, racetrack employees or contractors who do not have access to restricted areas of a Racetrack (the stable area or paddock, for example) in the ordinary course of carrying out their duties are provided an exemption from registering. This means that if a racetrack employee's job does not regularly require them to access the stable area in the normal course of their work, they are not required to register.

A few examples may help illustrate the registration exemption rule: Racetrack superintendents are required to register because their ordinary job duties are carried out in the restricted areas of a Racetrack. A racetrack public relations employee that occasionally spends time in the barn area is not required to register because access to the restricted areas of the Racetrack is not a part of the ordinary course of their job duties. It is important to note that HISA registration does not affect barn and track access. State and racetrack rules will continue to control access.

Q: I have been working on getting horses registered on the HISA website and have found that I can't go back in and edit them once they're in. For example, I can't update their vaccination record to reflect that they're up to date. Furthermore, I have yet to find where I can add medical information, lay off time, and more, as required by HISA to be put in. I'd like to know if anyone who has solved this problem has gotten it sorted, as HISA has not gotten back to me about fixing this issue.

H: It's correct that this functionality is not yet available through the HISA Portal, but it will be soon. The HISA Portal's functionality continues to evolve, with new features being rolled out every two weeks.

This Friday, June 3 will see the introduction of the ability to update vaccine information along with Coggins and the Health certificate. There will also be a better horse location modification screen, and you will be able to edit the Owner ID.

On Friday, June 17, another round of features will roll out that will allow users to provide the additional information that HISA requires. Importantly, it should be noted that once you have registered yourself and your Covered Horses, you have satisfied your obligations to HISA for the July 1 start date.

Q: I was about to start the process of registering with HISA, however, a friend of mine tried to do so and got all the way to the end and there was no drop down menu for an “Ontario” license so he couldn't complete the application. Any thoughts? We are trying to register from Canada with an AGCO (Woodbine) license.

H: HISA has no jurisdiction in Canada or over Canadian license holders. If a Canadian licensee is planning to race in the U.S., they can register with HISA after securing a license from the racing commission in the state in which they plan to race.

Q: Why are breeders being asked to register? The definition of a covered horse as one that has had its first workout, is entered or nominated for its first race, means a large portion of breeders are not covered persons. By the time they reach that point, if the breeder still owns them, they would be registered (and licensed) as an owner anyway. I understand the language is in the original bill, but even though it's defined, nothing listed after would indicate a need for them to register.

Furthermore, if they do, why are sales companies and consignors not required to register? Young horses preparing for sale receive vet care, surgery and medications up to the point of 2-year-old sales, but am I to understand those records aren't under the same oversight, and the individuals overseeing that sales prep are not either?

More confusingly, in the rules published by the safety commission in the Federal Review, the definition of a breeder has disappeared from the terms used section, so they don't even define what a breeder is. Can anyone clarify this?

H: Breeders are only required to register if they are required to be licensed by their state racing commission. As with any person, licensure by a state racing commission is the threshold requirement for registration with HISA. If a breeder is not required to be licensed by their state racing commission, then there is no requirement to register with HISA.

Q: During a lengthy conversation with the Jockeys' Guild, the HISA members were challenged with some language that had been changed from the original scope of the bill (Section 8400 in the published rules), namely, that HISA investigators could not only enter any property where covered horses were being cared for, but had access to any books, records and physical property of any other business owned by a covered person.

In other words, if an owner is a doctor or lawyer, by virtue of owning a racehorse, a HISA investigator appears to have the right to search their offices and records without a warrant.

According to representatives, that language did not fly with the FTC and was being changed, but it remains published and it would be a part of the agreement for anyone signing up with HISA.

When will we see the corrected language on their right to enter property and will that be before July 1st?

H: It is important to note that the referenced language in the current Enforcement Rules was approved by the FTC. This is not surprising since the language of the rule tracked the statutory language which states that the Authority “shall develop uniform procedures and rules authorizing- (i) 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.”

It should also be noted that other states have statutes that are similarly broad (such as Kentucky). The FTC addressed the entire matter in some detail in the order approving the Enforcement rules, noting that the commenters' quarrel was as much with the HISA Act itself as with the HISA 8400(a) rules.

Nevertheless, to allay the concerns expressed, HISA has restricted the scope of 8400(1)(a) in the revised enforcement rules. The revised rules were shared with numerous constituent groups (including the Jockeys Guild) earlier this month and are available here:

HISA plans to submit the revised enforcement rules to the FTC in the near future.

Q: How did the FTC sign off on only one crop being approved for use? How does a single company having the only crop approved by HISA not violate antitrust laws?

H: No company was approved to manufacture the riding crop. Any person or company is free to manufacture a riding crop that is in compliance with the Safety Rules.

If industry participants have any more unanswered questions about the process, let us know at suefinley@thoroughbreddailynews.com and we will try our best to get those answers.

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HISA CEO Addresses Registration Issues in Letter to Industry

Dear Thoroughbred racing community stakeholder,

We appreciate your assistance in spreading the word on the need to register with HISA before the Racetrack Safety Program takes effect on July 1, 2022. It has come to our attention that

some users have recently experienced technical difficulties with the HISA registration platform.

The primary issue has been with the two-factor authentication system that relied on text messaging, a standard measure to ensure an additional layer of protection. Our technology

team has learned that, despite the success of earlier tests, HISA's text message verification codes have in many instances been misclassified by telecommunications providers as spam.

While we became aware several days ago of this issue, it unfortunately took more time than expected to identify why it was happening. It has now been repaired, but it will take more than a week for the fix to fully propagate through these vast systems. Therefore, we have suspended the account verification requirement and continue to secure the accounts using alternate methods.

While our helpdesk operators have been working around the clock, we understand that many registrants have experienced delays in receiving the verification code and/or responses from

the helpdesk. We sincerely apologize for any frustration these delays have caused.

All users who did not receive a verification code after completing the process have been automatically verified and should be receiving an email (or have already received one) notifying them of their successful registration and providing their HISA number. Tomorrow we will also initiate an outbound call campaign to verify that the automatically verified users received proper notification.

Thank you for your patience and understanding in the initial stages of our registration launch.

We aspire to deliver the high level of service this industry deserves, and we will continue to work tirelessly to ensure we meet your expectations going forward.

Yours truly,

Lisa Lazarus,

CEO, Horseracing Integrity and Safety Authority

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