How bad is New Jersey’s split sample rule?
First, it is contrary to the best practices as set forth by the Racing Medication & Testing Consortium (RMTC), the National Thoroughbred Racing Association (NTRA) Safety & Integrity Alliance, and the model rules of the Association of Racing Commissioners International (ARCI).
It is also unfair to horsemen. Very unfair.
Background
Recently, I wrote a piece called, “New Jersey drug finding: Bad regulation and poor judgment equals injustice for Monmouth Park trainer.” In that piece, I wrote about a trainer, Glenn Thompson, who won a maiden race last July at Monmouth Park only to be disqualified for a positive test, despite the fact that the split sample results were below the regulatory threshold set by the New Jersey Racing Commission’s (NJRC) own regulation.
The drug in question is methocarbamol, a muscle relaxant. The regulatory threshold in New Jersey (and as recommended by the RMTC) is 1 nanogram in blood plasma. The finding by the NJRC’s primary laboratory (Truesdail Laboratory) indicated a concentration of 5 nanograms. The split sample analyzed by the Kenneth Maddy Laboratory at the University of California at Davis found a concentration of .75 nanogram.
Despite the split sample finding being below the regulatory threshold, the board of stewards at Monmouth Park held a hearing and suspended Mr. Thompson for 15 days, fined him $500, and required the forfeiture of the winner’s share of the purse — $33,750. Mr. Thompson has an appeal of the decision pending.
Rule review
The New Jersey regulation has two important provisions that are contrary to industry standards. Both have the potential to unfairly affect horsemen (owners, trainers, and jockeys).
The first can be found in this excerpt of the New Jersey rule:
If the outside laboratory confirms substantially the testing laboratory findings, or if the split sample was not of sufficient quantity for the outside laboratory to conduct valid testing or to reach a valid testing conclusion, the findings of the testing laboratory shall be considered conclusive. [Emphasis added.]
I asked Dr. Mary Scollay, the former equine medical director for the Kentucky Horse Racing Commission and current executive director of the RMTC, her opinion on this provision of New Jersey’s split sample rule.
Dr. Scollay said, “In regulatory terms, this word (substantially) is particularly problematic. Laboratories either confirm the presence of a substance or they do not. If analysis for a given substance does not meet all the analytical (not to be confused with regulatory) criteria, it cannot be reported as a finding.”
There is more to this provision:
If the testing laboratory detects a foreign substance at a level that is at or above a threshold established in this chapter, the overage shall be deemed confirmed if the outside laboratory confirms the presence of that foreign substance in the split sample at any level. [Emphasis added.]
I think most all of us would agree that if a split lab finding is below a threshold then the case should be dismissed. Otherwise, why even have a split sample for a threshold drug?
I believe most states would dismiss the case under similar circumstances. That’s the industry standard. It’s also common sense.
The two rule excerpts above appear to be contradictory. The first is subjective and allows someone to determine what “substantially” means. While the second excerpt sets an objective standard of a violation if the split finding is “at any level.” Both are bad. Both are unfair. But when you combine them, you open yourself to selective enforcement and inconsistent prosecutions.
Another flaw in the New Jersey rule is that the split sample that is collected in the test barn is sent to the primary laboratory. That is contrary to the best practices of the RMTC, the NTRA Safety and Integrity Alliance, and the ARCI model rule. The industry standard of each of these organizations recommends that the split samples be retained at the racetrack under the custody and control of the racing commission.
The rationale for that recommendation is simple and straightforward: It eliminates any possibility of the split sample’s being contaminated at the primary laboratory.
ARCI has some work to do
The ARCI model rule regarding drug testing is quite detailed in many regards. It is very specific on the collection, handling, and storage of samples, including split samples. It does not, however, address the question at hand: What happens when the split sample laboratory returns a finding below a regulatory threshold?
This needs to be rectified — now.
The provision regarding a split finding needs to be unambiguous. If it’s below the threshold the case is dismissed. Period.
While the ARCI is addressing this matter, I have another recommendation that involves the cost of the split. The ARCI model rule, and the industry standard, requires the requesting horse owner or trainer to pay for the cost of split sample testing. Sometime before I left the Indiana Horse Racing Commission in 2015, we amended our split sample rule by adding this language:
The commission shall reimburse the trainer or owner for the cost of split sample testing if the results from the split sample laboratory do not confirm the presence of the drug at levels above the thresholds.
It’s only fair to reimburse the trainer for the cost of the split sample under this specific circumstance.
So, I ask the ARCI and the community of regulators to be fair and unambiguous in upgrading the split sample rule.
Let’s get this right for once.