Third in a Series: Spotlight on Pennsylvania’s Drug Testing Program – Credibility Requires Transparency

In most racing jurisdictions, a report of a drug test finding from the state’s official laboratory is considered a “positive” finding of drug rule violation when the laboratory identifies the presence of a drug contrary to the rules or policies of the commission. Those results are typically forwarded by the state commission to the stewards, who initiate the appropriate disciplinary action. Those findings are known in the business as positive tests.

Based upon the information I have uncovered, my understanding is that the Pennsylvania Horse Racing Commission’s procedures for processing laboratory positive test results is unusual, if not unprecedented. Test results reported from that state’s official testing laboratory, the Pennsylvania Equine Toxicology and Research Laboratory (PETRL), are considered to be “investigatory” in nature. In other words, a laboratory test finding may not be prosecuted (as it would be in other states), and the public may never be aware that other horses in the race competed against a horse that had a drug in its system.

I learned of this information via a records request through Pennsylvania’s Right-to-Know law. I requested copies of PETRL’s findings from 2016 and 2017. I asked for these records because I presumed the reported results to be positive findings, and I wanted to follow up on how these were handled.

What I received was an incomplete spreadsheet containing much of the information that would be included in the reports sent by PETRL to the commission. The Pennsylvania Department of Agriculture (PDA), which responded to my request, indicated that the original laboratory reports are exempt from public disclosure. In other words, they can be kept confidential. What they did was disclose some information but also maintain that other similar information was exempt from disclosure.

Based upon what I have received and uncovered on my own, I will explain what I believe to be the Pennsylvania commission‘s standard operating procedure for handling laboratory findings.

Indiana and Elsewhere

In my 25 years as the executive director of the Indiana Horse Racing Commission, I processed hundreds of positive laboratory findings. Each reported finding of a foreign substance by the laboratory indicated a violation of our rules. That means that the findings were actionable and could result in a ruling against the trainer of the horse.

In almost all of those cases, the trainer was fined (sometimes suspended), and the purse was forfeited and redistributed. There can be, however, legitimate reasons for the trainer not to be penalized and/or a ruling not to be issued. An example could be that the trainer exercised their right to split-sample testing, and the referee laboratory could not confirm the initial finding.

Regardless of the final disposition of the case, the routine procedure was that a report of each positive finding was forwarded to the stewards who notified the trainer. The trainer was then afforded due process protections consistent with our regulations and applicable law.

As a matter of policy, I would share all positive test results with the commission’s stewards at the racetrack for further handling.

PETRL Reports

Through my records request to the PDA, I received copies of documents setting out the threshold levels applied by the PETRL laboratory when undertaking their testing and reporting. The following statement was included on the top of each page in the threshold level documents:

A substance is not reported as a laboratory finding if the concentration is determined to be below the assigned internal threshold for the appropriate matrix.

If the laboratory is only reporting substances over the threshold, what else could they be reporting that the commission does not consider to be a positive finding?

PDA Position

On October 4, 2018, in response to my request for PETRL findings for 2016 and 2017, the reply I received from the PDA that included this statement:

PETRL reports are predecisional and investigatory in nature.  Testing is an internal process used to provide data from which the Director makes a final decision regarding whether a “called positive” and resulting violation exists.  Therefore, PDA has withheld PETRL toxicology and pharmacology tests and test reports pursuant to the RTKL exemptions…...

Important Factors to Consider

Consider that based on the information provided one can deduce that:

  1. PETRL does not report findings below thresholds.
  2. The director decides which findings are treated as rule violations.
  3. The commission chooses to keep some reported PETRL findings confidential.

Although items 2 & 3 above may be considered unusual for many racing commissions, the combination of all three factors above in Pennsylvania permits the commission’s actions to be hidden from public scrutiny.

Now, understanding the above about Pennsylvania, consider that the evidence provided supports the following conclusions:

  1. The commission chose not to prosecute a finding for Oxycodone in a $252,000 stakes race, click here for story.
  2. The commission chose not to prosecute some, but not all, of the PETRL’s betamethasone findings, click here for story.
  3. The commission chose not to prosecute six flumethasone findings even though the RCI and RMTC did not have (and still do not have) a threshold for that drug, click here for story.

Also, consider the following excerpt from the Pennsylvania pari-mutuel statute regarding the qualifications of four of the nine voting commissioners:

Four members appointed by the governor as follows:

(i) One individual representing the Thoroughbred horsemen's organizations in this Commonwealth selected from a list of at least 10 qualified individuals submitted by the Thoroughbred horsemen's organizations.

(ii) One individual representing a Thoroughbred breeder organization in this Commonwealth selected from a list of at least 10 qualified individuals submitted by a thoroughbred breeder organization.

(iii) One individual representing the Standardbred horsemen's organizations in this Commonwealth selected from a list of at least 10 qualified individuals submitted by the standardbred horsemen's organizations.

(iv) One individual representing a Standardbred breeder organization in this Commonwealth selected from a list of at least 10 qualified individuals submitted by a Standardbred breeder organization.

In addition to mandating horsemen representation on the commission, approvals from commissioners representing the Thoroughbred and Standardbred horsemen’s associations are required for the employment of new commission directors.

That’s right. It means that the horsemen/commissioners have what amounts to veto power over hiring the person who will, to a large degree, regulate them and their fellow horsemen.

The extent of horsemen’s association participation on the commission combined with their role in the appointment of the commission’s director raises significant conflicts of interest concerns.

In such an environment, transparency is crucial. The PDA has offered several reasons why the PETRL’s drug testing findings should be kept confidential. They have, however, stated that they are free to make any of these records public should the commission so choose.

I’ll repeat a question I asked earlier.

If the laboratory is only reporting findings for drugs and other substances over the threshold, what could they be reporting to the commission that has not been acted upon?

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