WV moves on out-of-competition testing; concussion protocol begins Aug. 1

By: Tom LaMarra

Posted: July 16, 2019

The West Virginia Racing Commission July 16 approved eight model rules or updates to existing model rules, including one that would greatly expand the state’s out-of-competition testing program at its two Thoroughbred racetracks.

The rules, which were subject to a comment period, will have a final review July 22 before they are submitted to the West Virginia Secretary of State July 26 for another review. If approved, they will then be prepared for the 2020 session of the West Virginia legislature, which begins in January.

Hollywood Casino at Charles Town Races and Mountaineer Casino, Racetrack & Resort several years ago implemented out-of-competition testing for their graded stakes. But the state doesn’t have the Association of Racing Commissioners International model rule on out-of-competition in its racing statutes.

Kelli Talbott, a state Deputy Attorney General who handles legal matters for the WVRC, said the out-of-competition testing rule was approved by ARCI about three years ago after the umbrella regulatory group made changes at the request of the National Horsemen’s Benevolent and Protective Association. The rule was first proposed in West Virginia in 2017, and this year there again were public comments suggesting it may not be constitutional.

“We are the only Mid-Atlantic state that has not adopted these rules,” Talbott said at the July 16 meeting. “If I thought there were any legal or constitutional issues I would never have made a recommendation to the racing commission to adopt the rule. There are all kinds of protections for horsemen in that rule, as well as due process, notice and a lawful procedure for doing this.”

In West Virginia, the racetracks pick up the tab for all equine drug testing. WVRC Executive Director Joe Moore noted the earliest the rule could take effect is Aug. 1, 2020, which would give the tracks time to plan their budgets to accommodate additional testing for overnight races.

“Over the course of a few years, I think we can really build up the program,” Moore said.

“The industry is in a place now where a level playing field and model rules should be desirable for all parties,” said Erich Zimny, Vice President of Racing and Sports Operations at Charles Town. “Being a rogue state (in the Mid-Atlantic) makes me a little uncomfortable.”

Talbott noted that the National Thoroughbred Racing Association Safety and Integrity Alliance code of standards includes out-of-competition testing as a condition of accreditation. The WVRC in late 2016 required Charles Town and Mountaineer to pursue accreditation by the alliance; the process began but has since stalled.

Other proposed model rule updates that will be sent to the West Virginia Secretary of State for consideration are as follows:

  • Adoption of the latest version of the ARCI Endogenous, Dietary or Environmental Substances Schedule, which sets thresholds for substances that can be present in samples through contamination or inadvertent exposure. Morphine was recently added to the schedule.
  • An update to the ARCI Uniform Classification Guidelines for Prohibited Substances, which is used by stewards to determine penalties or consider various circumstances if there is a drug positive.
  • Adoption of the latest ARCI rule on penalty guidelines for lower-level medication positives.
  • Adoption of the model rule on voided claims to allow for a person who submits a claim to void it if a horse is vanned off after a race or declared lame by the state veterinarian. Talbott said the rule would “put the power of decision-making in the claimant’s hands,” and she noted other Mid-Atlantic states already have such a rule on the books.
  • An amendment to conform to the ARCI model rule that would make a horse that is placed on the veterinarian’s list ineligible to race for a minimum of seven days; in West Virginia the period is currently five days. The amendment also would require horses placed on the vet’s list due to infirmity to undergo a drug testing before it is cleared to race again. “Adoption of these proposals is important to equine welfare,” Talbott said.
  • An amendment to conform to the ARCI model rule on race-day furosemide (Lasix) to include specifications for post-race testing so samples can be adequately evaluated.
  • An amendment to conform to the ARCI model rule on physical examinations for jockeys to include baseline concussion testing.

The West Virginia legislature earlier this year approved a rule mandating concussion protocol at Charles Town and Mountaineer, which will have the process in place beginning Aug. 1. The WVRC in June approved the concussion protocol submitted by Charles Town, and at the July 16 meeting approved a submission by Mountaineer.

Talbott said the provision on baseline concussion testing as part of a regular jockey physical failed to make the 2019 rule-making cycle because of timing. The tracks’ concussion protocol, however, does require a concussion assessment and evaluation by a medical professional any time a jockey has a fall, and it includes return-to-ride approval from a physician.

Earlier this year the Maryland Racing Commission formally approved concussion protocol that had already been in place through the work of MedStar Health sports medicine physicians as part of the Horsemen’s Health System.

In other business, Charles Town announced that Charlie McIntosh, who has served as racing secretary, has been promoted to Director of Racing, and his assistant, Elizabeth Rogers, will take over as racing secretary.

“Charlie has done a great job with overseeing our racing program and racing office and is unquestionably deserving of the position and expanded role,” Zimny said. “We’re thrilled with the combination of Charlie and Elizabeth leading the direction of our racing office operations going forward.”

(Charles Town photo by Tom LaMarra)