Digging Deeper into Proposed Multiple Medication Violator Changes

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Looking at proposed changes being considered for the multiple medication violation penalty system (MMV), it's not readily clear how these changes—when you just look at factors like reduced points for some infractions—would play out in the real world. But a hypothetical BloodHorse examination that applied the changes being considered to the previous record of trainer and well-documented multiple offender Rick Dutrow Jr. suggests an updated MMV would significantly reduce its bite.

The proposed changes have industry support—the Racing Medication and Testing Consortium favors them—and next will be considered by the Association of Racing Commissioners International (ARCI).

As the MMV changes are considered, one idea that has been suggested to accompany them—moving phenylbutazone and other non-steroidal anti-inflammatory medications into a higher penalty class—would keep the teeth of the current MMV sanctions in place, at least based on the same hypothetical application of rule changes to Dutrow's record.

With participants and horseplayers raising concerns about trainers who repeatedly break the rules, the MMV is one of four pillars of the National Uniform Medication Program (NUMP). NUMP is the industry's effort to bring uniformity in medication rules and policies to all racing states. It is fully in place in 11 states: Arkansas, Delaware, Indiana, Massachusetts, Maryland, North Dakota, New Jersey, New York, Pennsylvania, Virginia, and West Virginia.

The other three pillars of NUMP are its list of controlled therapeutics, third-party administration of race-day furosemide (Lasix), and accredited testing labs. Of the four, the MMV provision has been the slowest to be adopted as it's fully in place in only a dozen states. Twenty states have the controlled therapeutics list, 28 have lab accreditation, and 18 have third-party Lasix.

The MMV uses a points system similar to that of many state departments of motor vehicles, in which violations are assigned points. If a person reaches a points threshold, sanctions in addition to the penalties for the latest offense are assigned.

The RMTC board supports changes to the MMV that supporters believe would retain effectiveness as a deterrent, while reserving the most severe penalties for horsemen with violations involving substances that call for the harshest penalties on the Association of Racing Commissioners International Uniform Classification of Guidelines of Foreign Substances. 

When it meets Dec. 8, the ARCI model rules committee is scheduled to consider RMTC-recommended changes to the MMV that would eliminate points assigned for the lowest penalty category (Class D) and halve points assigned to Class C penalties. Also, the number of points for the first MMV sanctions to be applied would be raised from three to five, suspension days would be reduced, and the time period that points stay on a horseman's record also would be reduced.

What does all this mean? A BloodHorse examination of the proposed MMV changes applied to the established, available Dutrow record reveals that he'd have faced significant MMV suspension days. Those hypothetical suspension days, based on the dates the violations occurred, would be greatly reduced under the proposed changes.

Dutrow's record seems like a good one to apply to the proposed changes, because if racing fans in a Family Feud-type show were asked to name a trainer with multiple medication violations in recent years, Dutrow would be a good bet to be the "No. 1 answer." In Oct. 2011 the New York State Racing and Wagering Board suspended Dutrow 10 years for repeated medication violations and other rule violations. 

If the current MMV rule were applied to Dutrow's long list of failed post-race tests from 2003-10, he would be required to serve 390 days of MMV suspension days. If the proposed MMV changes become reality without a change in the penalty schedule, that 390 number could be reduced to as low as 75 days—just 19% of the initial MMV sanction. 

In examining the available record of Dutrow from April 27, 2003 through Nov. 20, 2010, BloodHorse found 13 failed post-race tests that resulted in sanctions. Looking at these 13 failed post-race tests, four were for Class B substances and nine were for Class C substances. All 13 violations involved medications included on the list of controlled therapeutics.

Dutrow had a mepivacaine positive April 27, 2003 and he had a clenbuterol positive Jan. 11, 2004. Those two failed post-race tests for two Class B substances would eventually lead to New York handing Dutrow what amounted to a 60-day suspension. Had the current MMV rule been in place, it would have assigned Dutrow four points, and being higher than the three-point current MMV threshold, a mandatory additional 30-day suspension would have been added at the end of those 60 days.

While changes to the MMV rule would not reduce the number of points assigned to Dutrow for those two positives, they would increase the threshold for the initial penalty from three to 5.5 points. This would mean that under the same scenario, Dutrow would not receive any additional MMV days for two Class B penalties in less than nine months.

Under the current rule, following that initial points penalty, the seven straight Class C penalty infractions that show up on Dutrow's record would have piled on the points and suspension days. Granting that two violations probably would be viewed as a single infraction under the rule, the next six violations would have called for additional MMV days each time, five 30-day suspensions and then one 60-day suspension.

Two more violations for Class C penalties and two more violations calling for Class B penalties would follow, the final infraction being a Nov. 20, 2010 butorphanol (Class B) positive. In all, these 13 infractions would have called for 390 additional MMV days. 

Under proposed changes, with lower points assigned for Class C infractions, a higher initial points threshold, and quicker elimination of accrued points, Dutrow would not have received his initial MMV penalty until after a Jan. 20, 2008 phenylbutazone positive. That is more than a four-year difference from his initial hypothetical MMV sanction under current rules.

Instead of being 30 days, that initial sanction would be 15-30 days. Three of his next four violations would have called for additional 15- to 30-day MMV sanctions through Nov. 20, 2010.

Back to the real world, to date only three trainers have received additional MMV sanctions. Why are changes being considered?

In encouraging states to adopt the current MMV rule, RMTC executive director Dionne Benson said some states have said their laws require latitude in sanctions, making it difficult to adopt the current rule. Also with the proposed changes, specifically a provision that provides latitude if it's determined contamination occurred, National Horsemen's Benevolent and Protective Association chief executive officer Eric Hamelback believes his organization would support MMV.

RMTC vice chairman and Thoroughbred Horsemen's Association chairman Alan Foreman said he wanted the teeth of the program to be reserved for substances in the Class A and B categories. Hearing the calls to allow discretion in assigning sanctions, he recommended the changes.

"We'll adjust in the states that already have adopted the system and then this should free up jurisdictions around the country, as well as the HBPA, which has indicated it would now support the NUMP program after these changes," Foreman said. "This should be a catalyst to get NUMP moving in those states where it's been held up."

Foreman would like to see initial penalties strengthened for phenylbutazone and other non-steroidal anti-inflammatory medications. (I initially misunderstood Foreman in this regard and mistakenly reported he favors moving NSAIDs into the Penalty B Class. Foreman said he favors tougher initial penalties for NSAID violations without a change in penalty class.) 

"We’ve also gone back to RCI because the current penalty guideline may be too liberal with respect to phenylbutazone and the non-steroidal anti-inflammatories in that under current guidelines, you can get away with a few violations and not pay too much of a penalty," Foreman said of the initial penalty structure, not added MMV sanctions. "It was the clear consensus of the penalty committee that RCI needs to revisit that one portion of their guidelines. They’re too liberal. That’s where this gets fixed, not the points system."

If phenylbutazone and the NSAIDs were moved to Class B, at least in the Dutrow example, it would return the teeth of even a revised MMV rule. Putting all of the proposed MMV changes in place but moving phenylbutazone from Class C to Class B would have meant that all of the Dutrow violations would have fallen in the Class B category. He would would have faced MMV penalties for eight of the 13 violations and those sanctions would have totaled between 240-420 MMV days. Under this scenario, the first MMV sanction would have been called from on Aug. 18, 2004—or one violation after where the current rule would begin.

Note: From 2001-04, Dutrow had at least three Lasix overages, but because NUMP calls for third-party Lasix administration, those sanctions were not considered in this examination. Also, in 2000 he was sanctioned in New York for an "injectible vitamin." As it's unclear how that would have been handled on today's MMV rule, it also was not considered.

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