Nearly five months into the implementation of the racetrack safety rules by the Horseracing Integrity and Safety Authority, the authority continues to evolve and adjust its approach.
As of mid-October, HISA had registered 36,839 horses and 28,882 people, including 639 veterinarians currently in the system.
The Horseracing Integrity and Safety Act was signed into federal law in 2020. The Horseracing Integrity and Safety Authority is responsible for drafting and enforcing a uniform, national set of rules applicable to every Thoroughbred racing participant and racetrack facility in the U.S. The authority was created to address the safety and welfare of racehorses and the integrity of the sport itself, through better anti-doping measures and racetrack safety standards.
The authority has reached voluntary agreements to implement its rules with 17 state racing commissions out of a total of 21 that HISA currently governs. A handful of lawsuits, however, have questioned HISA’s authority and sought to prevent its programs’ implementation.
Overseen by the Federal Trade Commission, HISA comprises two programs: the Racetrack Safety Program, which went into effect July 1, and the Anti-Doping and Medication Control Program, which will go into effect Jan. 1, 2023.
The Racetrack Safety Program includes operational safety rules and national racetrack accreditation standards that seek to enhance equine welfare and minimize equine and jockey injury. The program will expand veterinary oversight, impose surface maintenance and testing requirements, enhance jockey safety, and regulate use of riding crops, among other measures.
The Federal Trade Commission so far has formally approved HISA’s Registration Rule, which requires that all covered persons—including racetrack veterinarians—and covered horses register with HISA. All veterinarians treating covered horses must be registered with HISA. That also means they are required to upload treatment records, health records, and other information to a reporting database. Practitioners expressed frustrations with the system after its launch in July, but HISA says it has fixed many of the issues, according to an Oct. 10 letter to veterinarians (PDF).
Drug testing updates
On Aug. 17, the board of directors for HISA submitted its proposed rules (PDF) for HISA’s Anti-Doping and Medication Control Program to the FTC for final approval.
The Horseracing Integrity and Welfare Unit, a new independent organization, developed the rules in consultation with HISA’s Anti-Doping and Medication Control Standing Committee before the rules were presented to the HISA board for approval. A public comment period was held prior to that, along with meetings with industry organizations and review of more than 200 comments submitted by racing participants and the public.
The Horseracing Integrity and Welfare Unit was established this year by Drug Free Sport International, the group that HISA is working with on the Anti-Doping and Medication Control Program after negotiations ended late last year regarding working with the U.S. Anti-Doping Agency on the program. DFS has helped administer drug testing programs for a number of major human sports leagues, including the NFL, NCAA, and NBA.
The ADMC Program will create a centralized testing and results management process and apply uniform penalties for violations across the country. The Horseracing Integrity and Welfare Unit will oversee testing, educate stakeholders on the new program, accredit laboratories, investigate potential violations, and prosecute any violations.
The rules submitted to the FTC include the Equine Anti-Doping and Controlled Medication Protocol, the list of prohibited substances, definitions, arbitration procedures, equine testing and investigation standards, and equine standards for laboratories and accreditation. Additionally, HISA recently made a draft list of prohibited substances (PDF) available for public comment. The authority will continue to solicit stakeholder input before submitting that document to the FTC.
Adolpho Birch, ADMC committee chair, said in an announcement: “Out-of-competition testing, uniform lab accreditation and results management processes, a robust intelligence and investigations arm, and consistent penalties that are commensurate to potential rule violations are just a few of the components of HISA’s ADMC Program that will change Thoroughbred racing for the better. Importantly, the rules and processes include and build upon successful state programs, such as the Multiple Medications Violations Schedule.”
Preemption and pending lawsuits
HISA creates a national standard that expressly preempts state law and regulation within the authority’s jurisdiction, causing several states to raise their opposition to the preemption in federal court.
Three federal suits—one in Texas filed by the National Horsemen’s Benevolent and Protective Association; one in Kentucky filed by the states of Oklahoma, West Virginia, and Louisiana; and another recently filed in Texas by a racetrack and other racing interests—challenge as unconstitutional the novel regulatory structure established by the HISA statute through which a private, self-regulatory nonprofit entity is overseen by the Federal Trade Commission. In two of these cases, the HISA statute was upheld, and the cases are on appeal before the 5th Circuit Federal Court of Appeals. The other is proceeding before a district court.
Another lawsuit, led by the states of Louisiana and West Virginia, has focused on the rules proposed by the authority and finalized by the FTC. This lawsuit alleges that HISA exceeded its statutory authority on a few of the rules and that the FTC did not properly provide for public notice and comment on a large number of the rules finalized so far. In June, a district court agreed with the plaintiffs and issued an injunction barring the authority from enforcing its regulations in Louisiana and West Virginia and against the other plaintiffs. On appeal, the federal 5th Circuit Court of Appeals stayed the injunction, meaning that it is not currently enforced. Oral arguments were held before the court of appeals on Aug. 30.
The HISA preemption of state law, the current status of the litigation, and ongoing rulemaking by the authority create a potentially confusing landscape for veterinarians working with covered horses. For example, the authority’s rules require veterinarians examining or treating covered horses to electronically submit specified records to the authority within 24 hours. These rules may conflict with client confidentiality provisions in some state veterinary practice acts or regulations of some state veterinary licensing boards. HISA preempts such state laws. However, with the district court’s injunction covering not only Louisiana and West Virginia but also the other plaintiffs to the lawsuit regardless of location—and the subsequent stay of the injunction—veterinarians treating covered horses are awaiting regulatory clarity.
Meanwhile, HISA has started to revise some aspects of the challenged rules while the appeal is ongoing.
Most recently, HISA announced the formation of an advisory group.
The Horsemen’s Advisory Group is intended to provide feedback to HISA’s executive team and standing committees on the implementation and evolution of the authority’s regulations and protocols. Members will serve one- to two-year terms to stagger changes in the composition of the group and to maximize the opportunity for participation across the industry in the coming years.
With input from the HISA standing committees, the authority’s executive team selected 19 members for the advisory group who are involved in both small and large racing operations across the country. The advisory group is expected to hold its first monthly meeting with HISA leadership sometime in October.
The members are trainers, owners, and veterinarians as well as representatives of racing offices, backstretch employees, farriers, and aftercare initiatives. Among the members are Dr. Sara Langsam, a veterinarian with Teigland, Franklin and Brokken DVM’s Inc. who is based at Belmont Park, and Dr. John Piehowicz, a Cincinnati-based Thoroughbred veterinarian and founder of Cincinnati Equine LLC.
HISA CEO Lisa Lazarus said in an Oct. 17 announcement (PDF) about the advisory group: “I am particularly grateful to its distinguished and highly qualified new members who have agreed to collaborate with us on an ongoing basis. I know that HISA will benefit immensely from this group’s extensive, hands-on experience in Thoroughbred racing as we continue to work with all industry stakeholders to advance the safety and integrity of our sport.”