By Daniel Ross
After a series of false starts, the Horseracing Integrity and Safety Act's (HISA) signature anti-doping and medication control (ADMC) program is now set to go into effect Monday.
On Friday, TDN spoke with HISA CEO Lisa Lazarus on a variety of topics including the launch of HISA's signature drug control program, operational expenses, the Forte situation, Kentucky Derby week and Texas. The following is a very lightly edited version of that interview.
TDN: Last week, the TDN published a story on the headwinds facing the Texas racing industry. In it, the Texas Racing Commission (TXRC) executive director, Amy Cook, reaffirmed Texas's position that unless HISA is restructured or replaced by a “cooperative agreement grant program,” the law could not go into effect in the state. What's your response to the substance of that argument?
Lazarus: There's no change from my earlier response which is that we've done the legal research on this and we think without question there's really no dispute that the Texas Racing Commission absolutely could implement the HISA rules the same way that every other racing jurisdiction has, and that their decision not to is simply a policy choice.
TDN: What do you tell those Texas industry stakeholders who want to join HISA in order to send out their simulcasting signal?
I would say, I'm so sorry that your racing commission is not willing to engage with us to find a solution. But if you have any suggestions or recommendations on how we could have that conversation with the racing commission, I'm all ears. But unfortunately, I'm powerless to require the racing commission to change their policy.
TDN: The commission's stance is they've tried to maintain a dialogue.
That's not true. [Cook] invited me out to Texas more than a year ago before HISA was implemented. I did go out there and we did have a very good conversation, and I thought we had an opportunity to sort of find a way to accommodate Texas' concerns while still allowing HISA to be implemented. Unfortunately, we were unsuccessful in those follow up conversations. I have not actually heard from her or anyone in the Texas situation for more than a year.
TDN: At the same time, lawsuits still abound. If HISA as currently written is once again found unconstitutional in one of these cases, how confident are you Congress can and will fix it again?
I don't agree with the basic premise of your question. It's extremely unlikely that any court will find HISA unconstitutional as currently written. If you read the Sixth Circuit opinion, and if you read the district court opinion out of Texas, I think you'll be able to see the courts' reasoning. I really don't see any genuine risk going forward.
TDN: Let's move onto the Forte situation, the Todd Pletcher trained runner who last year tested positive for the nonsteroidal anti-inflammatory drug, meloxicam. Now, it took from September 23, when the A sample findings came back, to Jan. 28 for the B sample to be confirmed. With HISA's regs as currently written, the public might still not be notified until the B sample is returned. What mechanisms are in place to ensure such a similar delay doesn't happen under HISA?
One of the key criteria for selecting the six labs that form part of the HISA program was a contractual agreement around turnaround times. And so, given the contracts they currently have in place–unless there's something extremely unusual–I'm very confident that the turnaround times will be quick and won't create significant delays.
For a vets' list test, it's five days from [when] the laboratories received the sample. For a post-race test, it's 10 business days from [when] the labs received the sample. The B samples will vary depending what the substance is. We expect the B samples to also be in the 10-day timeframe, but that will vary to some extent based on the sample that's being confirmed.
TDN: HISA will be using three less RMTC-accredited labs than is currently the case. Can you make any promises that lab capacity is up to the challenge?
I can promise that if the labs want to remain part of the HISA program, they will have to comply with the contractual agreement, which are those timelines. So yes, I can promise that if they don't comply with them, they'll no longer be a HISA lab.
TDN: Given how rarely a B sample differs from the A sample finding, is there any consideration to alerting the public of an A sample positive finding?
As the rules are currently written? No. What I will say, I think there's maybe an interesting exception to that, which is that HIWU [Horseracing Integrity & Welfare Unit] the agency does have the option to ask the internal adjudication panel to disqualify a result ahead of the B sample, if that result will impact an important qualification. In other words, you have a situation where a horse won a race and that race qualified them for, let's say, the Derby, and there's a concern that B sample won't be back in time. HIWU can ask the arbitration panel to disqualify the result ahead of the Derby so that the second-place horse qualifies, or whatever the details are there. That would be up to the arbitration panel.
TDN: Forte's connections have suggested that the meloxicam positive is the result of environmental contamination, which touches upon a major fear among law-abiding trainers and owners. What specific assurances can you give those trainers who play by the rules that they're not going to be found guilty of a positive that wasn't their fault?
I'm not going to talk about Forte specifically, but what I will tell you is that HISA's screening limits from meloxicam track the International Federation of Horseracing Authorities' screening limits. Therefore, our screening limit is one nanogram per milliliter in blood and 10 nanograms per milliliter in hydrolyzed urine. If what has been reported–and I haven't verified this–but if that positive was [indeed] 500 picograms, that would be below our screening limit and would not ever be notified as a positive under HISA.
Point two, HISA has an atypical findings policy with 27 substances listed, and if [one of those] substances are detected in a horse's system, it goes through a special process to determine whether or not it's contamination. That's reviewed by the scientific committee. If the committee determines that it is contamination, then it never even rises to a violation.
There's another provision in our rules called contaminated product. In that situation, if it's not subject to the atypical findings policy, and it's above the screening limit, there would still be disqualification. But the trainer could argue that it was a contaminated product or there was contamination, and they have the opportunity to have their sanction reduced to zero if they can convince the arbitration panel that it was contamination.
TDN: But at the end of the day, if they haven't got a perfect answer–like a groom was prescribed that specific medication or proven contaminated feed–aren't potentially innocent trainers at serious risk of being inadvertently swept up in the net? They're certainly facing some pretty stark consequences.
Yes, they are. But there's a lot of things that make it far less likely under our program that that is going to happen.
With our accreditation program, we have far stricter requirements around the cleanliness of the test barn so that you have less of a risk of things in the facility causing contamination.
The second is that we've done audits of some of the state racing commissions' collection programs, and many of them were not using secure collection mechanisms, were not using gloves, were really not–in our view–maintaining a safe chain of custody process. Our rules do that. That also reduces the likelihood of contamination.
And then there are the rules I identified. We have screening limits that are sensible. We have an atypical findings policy that no state racing commission has ever had. And then we have rules where you can defend yourself.
TDN: Let's move onto the events surrounding the Kentucky Derby. You've said that HISA is performing its own investigation into the rash of fatalities at the track, and you've detailed what you're doing. But specifically, how does this differ from the one being conducted by the state racing commission?
I'm not sure exactly what they're doing. Obviously, there'll be some overlapping. But ultimately, there's a couple important things that are different. One is, since HISA's already been in effect, we have a fair amount of data that we mandate and collect that we can use to analyze, consider and review the issues.
Two, we have a national uniform governing body giving a different perspective and a different opportunity to review things to the folks who are doing it at the local level. Not that they're not doing it ethically, improperly. They have a different vantage point. But we have access to different experts and a different set of mechanisms we can use to review.
TDN: I think some of our more jaded readers reading your comments will come away thinking this is just another exercise in rubber-stamping. Are there any real-world consequences if you find something wrong?
I can't speak specifically to the pending investigation because we haven't made determinations yet. What I can tell you is, look at the Turf Paradise example.
We required Turf Paradise to make some very significant repairs and we made it clear to Turf Paradise that if they didn't, they would lose their right to export their [simulcasting] signal. We gave them a deadline, and they were able to essentially meet the deadline by a few hours. If they had not, we would have most certainly taken actions to restrict their signal. And they did also pay a financial penalty. We have a wide range of disciplinary authority.
TDN: I've spoken with a number of industry stakeholders who voiced frustration that during Derby week when the track experienced its spate of fatalities, HISA was largely silent. Kind of “disappeared into the background,” is how one person described it. If you could run that week again, would you do anything differently?
I don't think we were largely silent. There are authority issues that come into play, right? HISA's rule is not always to step in. Also, the way the rules are constructed is to support the local commission, the local track, to make sure they're doing everything possible to maximize safety. We will step in if there's a crisis that needs to be managed, if there needs to be some sort of immediate discipline. But otherwise, part of our role is to support and to provide resources and to really help ensure that everything is being done.
The second thing is that without the Anti-Doping and Medication Control program [in effect], without oversight of both pieces of the puzzle, it's difficult for HISA to really have full control. And so, I'm looking forward to restarting the ADMC program on Monday, because I feel like once we have that piece of it as well, we'll be in a much stronger position.
TDN: Isn't that a bit of a cop-out though, blaming the lack of an ADMC program? You don't think that was a missed opportunity to show the public there's a new sheriff in town?
First, we did release a statement. I did address the media. I did go on CNN. I think your question seems to presuppose that the problem was the track and that was not the information that we were getting. The track was evaluated a number of times. And the information that I received from our person, Mick Peterson, is that there was no data or no information that he received from his usual tests that raised any particular issue that could be rectified.
I also went into the jocks' room on the day and spoke to as many jocks as possible. I feel like a good way of determining whether or not the track is a problem is asking the jocks who are actually on it. The feedback that I got is 'no, the track was not the problem.'
[However], breakdowns are multi-factorial and we still need to make sure that we finish our investigation to be confident that there was not a track issue.
TDN: Talking of HISA's racetrack safety rules, it currently requires that every racetrack have necropsies performed on horses that are euthanized or die on their property. Is that happening right now?
Yes, it is happening.
TDN: Every single horse that dies on a racetrack that falls under HISA's umbrella undergoes a necropsy?
I mean, that's absolutely our rule. We follow up and whenever we become aware of a horse death on the racetrack. We reach out to the racetrack to make sure that the horse was sent for a necropsy. In some situations, if we have pushback from the racetrack, we take on the financial responsibility and then bill back the racetrack after.
There's a number of racetracks where the bills from the necropsies come right to me because we're concerned that the racetrack may not agree to make those financial promises or agree to pay for it. So, to my knowledge, yes, every horse that breaks down on the racetrack goes for a necropsy.
TDN: What about equine fatalities both during training and during racing–is HISA currently collecting that information from all participating tracks?
That is required. To the extent that we've audited it, if we see that something is missing or we're aware of it, we let the racetracks know. Obviously, it's a lot harder for us to audit and monitor whether or not we're getting all the information from training. It's far easier for us to identify if there's a breakdown in a race.
In terms of how long we'll be able to send the data back [to the public], what we've talked about internally is that we need at least one full year. Where we start that year may not be July 1 based on the amount of information that we have. But we do plan to share with the public our findings and we've already done that in certain areas.
TDN: In terms of the 2023 fee assessments, HISA has either received payment from the state commission or at least one racetrack in the following 10 states: Arkansas, California, Colorado, Florida, Illinois, Indiana, Kentucky, Nebraska, New York, Pennsylvania. But exactly how are HISA's operations currently being financed?
Two ways. One, we were under budget for 2022, so that allowed us to use the operating cash into 2023. When we send the [2023 fee] assessments to the states, we offer them a credit for their assessment from what was saved in 2022. We also did have to go back to our original lenders for some additional loans.
TDN: Who are these lenders?
The Jockey Club, the Breeders' Cup and the NTRA.
TDN: Will the industry have to pay these lenders back?
That's still a work in progress. I can't answer that question yet.
TDN: What about interest rates?
Pretty much no interest. The most recent ones are short term just to cover our operational costs.
TDN: Finally, with the ADMC program launching on Monday, what do you want to tell the industry?
I truly believe that once we launch and we have an opportunity to get going, that anybody who is on the fence or had concerns will feel confident, that this is absolutely the right move for the industry, and that we balance the key important issues for the industry.
I think most horsemen would say they want a uniform medication control program, they want uniform sanctions, shorter timelines and more efficiencies. Once we actually launch the ADMC program, there will be collective recognition of the value that provide for the industry.
I also think we'll be able to grow trust within the industry that we're doing this the right way, we're doing it ethically, we're doing it professionally, we're doing it responsibly, and that everyone is going to benefit, not just the horses.
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