Experts Outline HIWU Process at HBPA Convention

Two different panel discussions on the Feb. 25 opening day of the National Horsemen's Benevolent and Protective Association Conference—one featuring lawyers and one with research veterinarians—recommended steps trainers can take to diminish the chances of a horse's postrace drug test coming up positive for an impermissible substance.

They also recommended actions to help mitigate potential sanctions if that positive finding occurs.

But first, Dr. Rob Holland, a Kentucky veterinarian and researcher, offered some messaging advice: "Never say the word 'positive,'" he said. "Say 'chemical identification.'" Or as National HBPA CEO Eric Hamelback prefers, "adverse analytical findings." They prefer to word things this way because the National HBPA believes that some failed drug tests are a result of environmental contamination.

Jay Ingle and Chris Hoskins of the Jackson Kelly law firm were on the law panel that opened the conference at the Safety Harbor Resort near Tampa, Fla. Ingle and Hoskins are among the pro bono lawyers who provide qualifying trainers legal counsel if their horses' tests are determined to have chemical identifications by the Horseracing Integrity and Safety Authority's enforcement arm, the Horseracing Integrity and Welfare Unit.

Ingle said the pro bono lawyers working for free under the HIWU program are top notch. 

"Don't think of it as you get what you pay for, and it's free," he said. "I think the attorneys at HIWU would quickly tell you that none of us taking on these cases are rolling over. We're fighting just as hard as for the ones where we get paid." 

Ingle said there are very distinct trends "both to help you and your horsemen to protect yourself on the front end, but also how to navigate the system once you get in it, if you unfortunately are."

Among their conclusions:

• Trainers in such situations should act immediately to get knowledgeable advice because of time limits in place.
• If the case goes before an independent arbitrator, "They want to see that trainers who are accused are respecting the process," Ingle said. "Not flaunting it; not trying to get around it. Once you are in the HIWU process, that is not the time to attack the system. ... Arbitrators are not responding well at all to that. They want to see that, even if you disagree with the rules, you're trying to play by them. ... Don't try to hide things. Don't try to cover things up or lie. The arbitrators are good. They spot it if you're trying to pull a fast one. Your horsemen are going to do much better before an arbitrator by being honest. Sometimes that means acknowledging something that's not great: 'Yeah, I could have had the barn sign up earlier.' That's going to be a lot better than trying to talk your way out of it."
• "The arbitrator will ask the horsemen, 'What did you do to educate yourself? What did you do to learn about the rules, to try to follow the rules?'" Ingle said.
• Stay on HIWU during the hearing's discovery phase to get the information trainers need to defend themselves best. "It's pulling teeth to get documents out of them—something I'd think should be pretty simple," Ingle said. "I'm not talking out of school, because I've said it to their general counsel. There are some things we can fight over; there are some basic things that are fair to everybody. Let us have the documents, and we can have an argument over what they mean. It's been challenging, so you need an effective advocate to make sure the trainer is getting the information they need to defend themselves."
• Having horsemen show they are trying to play by the rules. That includes things such as accurate record-keeping and documentation of training for employees instructing them to wash hands and not to urinate in a horse's stall or have caffeine when they're around a horse.
• Horsemen's associations can help their membership "by first educating yourself," Ingle said. "When new education pieces come out, be sure to read them, and then make sure to get them to your members in an effective way to communicate ... because this process is very foreign to them. Heck, when it started, it was pretty foreign to us."

Jackson Kelly has created a "horseman's tool kit" with short, easy-to-digest videos on a variety of topics, including what horsemen need to do both before and during interactions with HISA and HIWU. The subjects include best practices, the importance of record-keeping, posting signs telling stable employees what to do and not do to prevent contamination, what to do if a HIWU investigator shows up at your barn to present a notice of violation, intermediate steps to take after receiving such a notice, and how horsemen and horsewomen can protect themselves. 

Ingle said HISA and HIWU also have some very good educational materials on their websites.

In the last panel on the day, veterinarian Dr. Kim Brewer recommended trainers not only install security cameras in their barn but also take photos to document that state and that HISA employees in contact with a horse are following all protocols. 

"If you're selected for drug testing, be very mindful and watchful," she said. "If you can't be there, have a witness there to watch what the testers are doing. If they are not wearing gloves, take a picture of that, write that down. Make sure they're following all the documented procedures. If you can—I know it will be on the paperwork—but get the names of everyone who handled your horse. Document everything. Put it down in writing when it's happening.

"If there's any unusual circumstance around the blood or urine collection, such as the horse being a jerk and not being easy to stick (to take blood), that's super important to us. That can help you if you know that things didn't go exactly smoothly. If you do get a chemical identification, make sure you retain a lawyer, if you can. ... If you are shipping in, I'd be documenting everything like crazy, because we know ship-in stalls are a huge source of contamination.

"Get your data. Request that your B sample (what used to be known as the "split" or "referee" sample to confirm the original finding) be submitted. Get all your lab documentation. HIWU likes to drag their feet on that. Find out if it was in the blood or the urine or both. We need to know the concentrations. And find out if it was the parent drug or the metabolite."

Brewer's final advice: Many of the arbitrators don't have extensive racing or horse knowledge. "So go at it with a very gentle, educational approach."

Holland, an expert in infectious diseases, said, "anywhere the horse's mouth goes, think about that as a potential problem for you for environmental or irrelevant thresholds to occur. That could be the water buckets, the corners of the stall. We're seeing a lot of trainers being the ones to give the medication because they're too worried about a problem."

He said, "The solution to pollution is dilution," but noted that even multiple intense cleanings of stalls may not get rid of all the contamination, which is why video documentation can be so important. He said he asks his trainer clients who are shipping to another track to race to take pictures of the barn and the stall before their horse goes into it.