HISA Town Hall: Lawyers, Positive Test Rates, and Rule Changes

The second Horseracing Integrity and Safety Act (HISA) virtual town hall was conducted Wednesday, giving industry stakeholders the chance to field unanswered questions about the federal anti-doping and medication control (ADMC) program that has been in effect since May.

Among the points raised at the meeting:

• A panel of lawyers has been established to provide pro-bono representation to cash-strapped stakeholders facing possible sanctions.
• Approximately 42,000 horses have been tested since the launch of the ADMC program nearly six months ago. There have been 11 positive tests for substances of human abuse.
• There have been 26 separate “atypical findings” cases involving substances commonly associated with environmental contamination. Of those 26 cases, 15 have been resolved, 14 dismissed as negative, and one pursued as an adverse finding.
• Over 30% of the positive tests reported have been for banned substances.

In attendance was HISA CEO Lisa Lazarus, along with Horseracing Integrity and Welfare Unit (HIWU) executive director Ben Moiser and chief of science, Mary Scollay.

Before plunging into the question portion of the town hall, the presenters provided an update on key changes to the program that have either occurred or are pending.

Enforcement Changes to Provisional Suspensions

As was previously reported, HIWU can now postpone a provisional suspension until the B sample is returned for many banned substances, including common drugs abused by humans like cocaine.

Similarly, pending cases for human substance abuse drugs won't be publicly disclosed until a B sample confirmation, or the B sample is waived.

The rules have also been expanded to allow stakeholders the discretion to do more activities when under a provisional suspension, like continue to care and jog or gallop their horses, enter backstretches (as per the local state commission), and maintain ownership in a covered horse.

Pending Rule Changes

Among the many ADMC-related rule changes headed out for public comment, the attendees highlighted two for special mention.

Certain substances–like Altrenogest–will be recategorized. In Altrenogest's case, this substance could be reclassified as a controlled substance rather than a banned substance.

Before the Federal Trade Commission can accept or deny the proposed changes, pending cases involving positive tests for Altrenogest and methamphetamine have been stayed, and provisional suspensions lifted.

Another possible rule change would see potentially lesser sanctions meted out for positive tests involving human substances of abuse.

Science and Substance Update

There have been several enforcement changes surrounding the use of electrolytes, formal guidance around which can be found here or on the HISA and HIWU websites. The TDN has also published this “explainer.”

The following is a summary of some of the main questions asked during the Q&A portion of the town hall.

Q: Has HIWU detected any substances not previously reported by state commissions?

A: According to Mosier, this question is a tough one to answer “given the reporting structure” in place before HISA and HIWU.

Mosier added, however, that he believed there have been one or more substances that have not been reported “for quite some time,” singling out Diisopropylamine for special mention.

Q: Is the drug positive rate significantly different under HISA than before?

A: Though comparing the regulatory structure before HISA and currently as an “apples to oranges” comparison, Mosier said that he believed the positive test rate appeared to be comparable.

Mosier added, however, that one significant difference was the positivity rate for banned substances under HISA. Over 30% of the positive tests reported have been for banned substances, he said.

Q: When facing possible sanctions, what procedures are in place to seek attorney representation if you're financially strapped?

A: According to Lazarus, HIWU now provides a “panel of lawyers” who have agreed to provide pro-bono representation to financially strapped stakeholders facing possible sanctions.

“We have lawyers from reputable law firms who have agreed to provide services at no cost, so long as the covered person qualifies financially for those services,” said Lazarus.

Those seeking to make such a request can go through horsemen's ombudsman, Alan Foremen, or though HIWU directly.

“You'll be asked a few questions about your earnings and if you qualify, you'll in fact be given the full support of pro-bono counsel,” said Lazarus.

Q: Before the advent of the ADMC program, HISA touted how it would protect trainers from sanctions in cases of inadvertent environmental contamination–in other words, cases involving “atypical findings.”

The question submitted, however, raised doubts about just how fairly HIWU's atypical findings policy has been rolled out.

A: There are 26 substances under HIWU's atypical findings policy–those substances which are commonly found in the natural environment, like those originating from plants or from grains in feed.

According to Mosier, an atypical finding triggers an investigation into the circumstances surrounding the finding.

However, it does not trigger an adverse finding, “meaning that the potential violation is not made public,” said Mosier.

According to Mosier, there are 26 separate cases involving these substances that are not currently posted publicly on the HIWU website.

Of those 26, 15 have been resolved, said Mosier. Fourteen of the 15 resolved cases were dismissed as negative, while one was pursued as an adverse finding, he added. The rest are still under investigation.

According to Mosier, “That policy is working very well,” adding that HIWU will publish additional data around its atypical findings policy in its annual report, set to go out during the first quarter of 2024.

At this point, Lazarus jumped in to add further details about human substances of abuse.

According to Lazarus, of the approximately 42,000 horses HIWU has tested to date, there have been 11 positives for human drugs of abuse.

Q: Why are trainers being meted out lengthy suspensions for possession of old medication containers, especially where there's no history of violations?

A: “If the container contains a banned substance, the regulations are very clear,” said Scollay. “Possession of a banned substance is an anti-doping violation.”

Trainers were urged to spring-clean their barns in advance of the ADMC program launch, said Scollay. One reason was to protect trainers from having substances in their barn “manufactured under sub-standard conditions,” she added.

“We've had several substances analyzed by laboratories and determined to have present substances that were not included in their list of ingredients, one of which was a banned substance,” said Scollay.

Mosier jumped in to add that testing is only one arm of the AMDC program.

“Just because you may not have a presence violation for a specific substance, doesn't automatically mean that that wasn't being used at some point in time,” said Mosier.

“The perfect example is Lance Armstrong,” Mosier added. “He never tested positive. He never had a presence violation. And yet he was found to be doping for many, many years, and was able to evade the testing being conducted on him.”

Q: When it comes to HISA's rules, is the International Federation of Horseracing Authorities (IFHA) rulebook a blueprint or a guideline?

A: HISA uses the IFHA's guidelines, screening limits and rules as a starting point, said Lazarus. But they can diverge from the IFHA with the consent of the ADMC committee and and HIWU, and with appropriate justification.

One example is bute, said Lazarus, pointing out how the IFHA's rules provide for a much longer withdrawal time than in the U.S.