☛ Horse Doping – Segment 4 – 8-1-14
HORSE DOPING – SEGMENT 4
NONPROFIT DRUG TESTING PROGRAMS – PROS & CONS
By Rick Dennis
Aug. 1, 2014
In the article “Horse Doping – Segment 3,” I discussed whether or not nonprofit equine drug-testing programs were fair and balanced. In Segment 4, I will provide a brief history of employee drug-testing programs in a general comparison to equine nonprofit drug-testing programs, especially in lieu of the recent announcement of the Federation Equestre International (FEI) saying, “The human athlete is subject to drug testing in equine showing disciplines as well as the horse.” This article will also detail the pros and cons of several nonprofit equine drug-testing policies in use in the industry today as well as the perceived short falls of each.
Federal Workplace Drug-Testing History:
In the 1980s, I had the privilege of being summoned to Washington D.C. to speak before a select Congressional Sub-Committee and Admiral Malloy of the U.S. Navy concerning drug intervention programs in use by the private sector, which could be incorporated into the Department of Defense (DOD) and the U.S. Military’s efforts to prevent illegal drug use among the rank and file.
My presentation involved the use of specially trained personnel and drug detection K-9s, as well as incorporating a modified drug-prevention program in use by law enforcement, to deter drug use in society, I redesigned the program for private sector use to reduce and/or prevent prohibited drug use among employees. The program proved highly successful and remains in use today.
In the above presentation, my counterpart was the Syva Corporation and its drug-testing method: the Enzyme Multiplied Immunoassay Technique (EMIT) system. EMIT is a common method for qualitative and quantitative determination of drugs and certain proteins in serum and urine of humans.
At the conclusion of the conference, the Department of Defense (DOD) and the U.S. Navy decided to incorporate both drug-prevention methods into their pilot Research and Development (R&D) drug-prevention program for U.S. Military personnel. After a lengthy background check and submission of my prior Supreme Court certification for a drug-detection K-9 as an expert witness, I conducted the first physical search of a military installation by a private-security contractor using personnel and drug detection K-9s at the U.S. Navy Base at Alvin Calendar Field in Belle Chasse, La.
On the other hand, my counterpart was experiencing difficult times with the EMIT system due to false positives and cross reactivity issues, i.e., participants eating poppy seeds were testing positive for opium, antihistamines were indicating false positives for cocaine use and over-the-counter stimulates were testing positive for methamphetamine use. Over all, this new drug-testing method proved harmful to the U.S. Military’s Drug Testing program.
Scientific advances produced the next generation of more reliable drug-testing methodologies included Radioimmunoassay (RIA) and Enzyme Immunoassay technologies as well as Gas Chromatography/Mass Spectrometry (GC/MS) for confirmation. In 1987, I founded Certified Lab, Inc., one of the first drug-testing laboratories in Louisiana, to meet the growing drug-testing demands of the industry and incorporating (RIA) technology as the initial screening test and (GC/MS) for confirmation.
The 1980s was the decade of private industry making the “Big Push” to design and implement drug and alcohol safety policies, a.k.a. D&A programs, to specifically address the growing drug-use problems in the workforce to minimize drug- and alcohol-related problems such as tardiness, productivity, accidents, deaths, asset Loss, etc. The industry realized it was losing billions of dollars annually due to drug- and alcohol-related issues in the work force. Consequentially, I either authored or assisted in the authorship of D&A programs for corporations such as: Exxon Company, USA, Gulf Oil Company, Kerr McGee, Marathon Oil, etc., just to name a few.
During the 1980s and 1990s, the federal government redesigned its drug-testing program with the introduction of the Federal Workplace testing program under the (49, CFR Part, 40) designation. This redesign process was due, in part, to an overabundance of lawsuits challenging testing in general as well as false positives.
Mr. Rip Rippert was assigned the duty of developing drug- and alcohol-testing protocols as well as laboratory certification standards for use in federal workplace drug- and alcohol-testing programs that remain in use today. Lackland Air Force Base, San Antonio, Texas, was set up as the government training facility and supplier of drug testing K-9s for government deployment and use.
Over time the government’s drug- and alcohol-testing program was tweaked and re-tweaked and included the adoption of the two sample, or split-sample collection methodology we see in use today. The split-sample method was placed in use to protect the company, government, collector and donor as well as offering a layer of protection between the donor and testing laboratory.
Essentially what happens is one sample is collected with enough volume sufficient for a Sample (A) and Sample (B) by splitting this one sample in half. In simple terms, Sample (A) would be analyzed and Sample (B) would remain frozen (untested) until a donor challenges a positive drug-test result, with all costs of sample (B) testing being at the sole expense of the challenger.
In simple terms, “If the sample (B) lab test concurred with the first test result, the sample is ruled a positive. If on the other hand, the second sample result is in conflict with the first test, the no-harm-no-foul rule applies and the test result is ruled a negative, giving the benefit to the donor.” This made the drug-testing program “Fair and Balanced”.
The split-sample collection methodology brings us to the focal point of this article, “The Pros and Cons of Nonprofit Equine Drug Testing”.
Nonprofit Equine Drug Testing – Pros & Cons:
To conclude my review of nonprofit equine drug-testing programs, I analyzed the following equine nonprofit associations: American Quarter Horse Association (AQHA), National Cutting Horse Association (NCHA), United States Equestrian Federation (USEF), National Reining Horse Association (NRHA), American Paint Horse Association (APHA), National Reined Cow Horse Association (NRCHA), Association of Racing Commissioners International (ARCI) and Federation Equestre International (FEI). This cross-section review represents the leading equine nonprofit’s, in their respective equine class, conducting equine drug testing in the industry.
My review indicated that all but three of the associations listed above incorporated the (ARCI) format in some form or another and uses the single-sample collection protocols; however, they are presently redoing some of their drug-testing policies.
Of the programs reviewed, the following nonprofit’s offer the most in-depth and comprehensive equine drug-testing protocols and produces a fair-and-balanced drug-testing program for the participants.
- Federation Equestre International (FEI)
- United States Equestrian Federation (USEF), and
- National Reining Horse Association (NRHA), except as noted below:
- Recently a group of professional horse trainers submitted to the NRHA a proposed drug-testing rule change which could, if adopted, change the entire complexion of this nonprofit’s equine drug-testing program. My question is: “Who would actually benefit the most from this proposed rule change – the horse, the association, the members, or the horse trainers themselves?” To review NRHA drug-testing policy and the proposed rule changes, click on the links below:
Click for NRHA drug-testing policy (page 48)>>
Click for proposed drug-testing rule>>
The Pros of Equine Drug-testing
FEI is the leader with the others following suit. FEI is also the leader with its recent announcement of testing the human athlete, in addition to the horse, in equine competition. You can go to their web site at: www.fei.org/fei/cleansport.
- Each of these programs offers the split-sample method, which offers a level of security and protection for the participant as well as the organization and sets them apart from others in the industry. Since drug testing is not a 100 percent-flawless science and false positives do occur the split-sample method will rule out any conflict in a positive sample test result.
- Each of these associations provide equine drug testing standards as well as conducting equine drug tests on a random basis.
The Cons of Equine Drug-testing
The areas of concern I have with equine drug testing can be found with the across-the-board assignment of blame for a horse-testing positive. In the general rule of law, an individual is innocent until proven guilty. In criminal prosecution, “direct evidence” is offered to the court to substantiate an individual’s direct involvement in a specific crime. Merely stating that anyone owning, training, caring for, delivering, entering up, showing, or coming in contact with the horse that tests positive is like stating that a bag of Marijuana found on (A) street is the shared responsibility of everyone living in a house on (A) street. In my opinion, this ideology doesn’t compute in a rational sense.
Since I am a former law enforcement officer, the rule of law becomes even more problematic for an organization under legal challenge, e.g., “If a plaintiff’s attorney at trial asks an agent or witness for the organization, under direct examination, to provide direct evidence of a specific individual’s involvement in the introduction of a prohibited drug to a horse-testing positive and no direct evidence is provided,” I would suggest the burden of proof and possible liability is then placed square on the shoulders of the nonprofit to provide such evidence as justification for any imposed disciplinary action. Just because you are the owner doesn’t mean you are the culprit!
Defamation is a very serious legal matter! For the most part, and from my viewpoint, some organizations, in their haste to adopt an equine drug-testing program, have overlooked possible legal consequences for their actions, which they may regret at a later date, especially under legal challenge, i.e., a lawsuit for damages.
Another problem I identified is the use of the phrase, “prima facie evidence” of the existence of a drug in a horse testing positive, especially when the organization uses a single-sample collection methodology versus the split-sample technique. In common law jurisdictions, prima facie denotes evidence that, unless rebutted, would be sufficient to prove a particular proposition or fact. If a single-sample collection method is used and a sample tests positive, the advantage at this point is given to the testing organization and the testing laboratory – not the individuals facing disciplinary action.
In the absence of a split-sample collection, there is absolutely no way for a testing organization to positively state with 100 percent certainty this is an accurate statement, other than to use the word “Presumed.” Perhaps the positive drug-test result stemmed from a false positive cross contamination at the lab, a switched sample, or the lab testing equipment is out of calibration. This is just another area of concern to be dealt with in the courtroom by trial attorneys and an area trial attorneys love to challenge, which could be eliminated by incorporating the split-sample technique.
In order to specifically state that a positive sample belongs to a specific horse, DNA testing samples should accompany the horse’s sample(s) to the testing laboratory. In human drug testing, the donor is present. He or she opens a sealed container containing the collection vials, evidence tape, etc., collects the specimen his or herself and sometimes under direct observation by the collector. He or she provides the specimen to the collector, initials the collection vial seal along with the collector, verifies the sample as his or hers, witnesses the sample placed in a shipping container and initials the shipping container seal for forwarding to the laboratory. The horse cannot duplicate these Chain of Custody procedures, therefore that provides more evidence for the use of DNA sample testing to confirm the donor’s identity and confirmation.
My next concern stems from a review of the individuals reviewing the positive sample and conducting interviews for possible disciplinary action. The NCHA states, “interviews will be conducted by a drug committee consisting of three (3) veterinarians, a horse trainer and a non-professional individual of their choosing.”
My Challenge: What knowledge, if any, do any of these individuals possess in the realm of drug-testing science, drug collection, transport protocols and Chain-of-Custody procedures – especially the horse trainer and the appointed non-professional? Since this organization only uses the single-sample collection methodology, those standing accused don’t have any viable means to challenge the positive test result and have only one available avenue for vindication: appealing to the Executive Committee.
In reviewing the American Quarter Horse Association’s (AQHA) drug-testing policy it revealed the Executive Committee would be responsible for reviewing positive drug-test results. Without being redundant, my challenge is the same as in the above paragraph. Again, AQHA only uses the single-sample collection technique limiting any legal challenges to the original sample, thus placing the upper hand to the nonprofit and the testing laboratory.
Another interesting aspect of this organization’s drug-testing policy deals with one provision in their handbook: “Beginning in 1993, American Quarter Horses competing in non AQHA-approved events also became subject to testing for controlled substances and evidence of tail alteration.”
Could this be conceived as one association’s approach to establishing a “Long-Arm Statute,” where it has the authority to reach across jurisdictions to enforce its rules? To review a copy of the AQHA Policy Statement, click on “AQHA Policy Statement” below and read under “Policy on Controlled Substances and Tail Alteration.
Associations should be reminded that Texas Statutes Non-Profit C.F. Code Ann 1396 – 2.02: General Powers, (B) prohibits a nonprofit from acting beyond the scope of the corporation.
Click for AQHA’s Drug Policy>>C
Click for Long-Arm Statute>>
Click for Texas C.F. Code Ann 1396-2.02: General Powers>>
The American Paint Horse Association (APHA) has an added twist to their equine drug-testing format in that it has incorporated a “Bond System” for individuals to use whose horse has tested positive. The “Bond System” simply authorizes an individual to put up $500. to the association while the hearing process is underway in order for the participant to remain showing and is refundable if he or she wins the hearing process. If he or she loses, the “Bond” is forfeited.
The problem of winning the hearing process is found in the single-sample collection method used by this association. The participant cannot effectively challenge the original lab test result if the one sample is the only one available. The challenger has a slim or nonexistent chance of proving laboratory errors in this scenario. Thus, I guess the $500. bond will be forfeited.
Another twist in their Drugs and Medications rules, under E. Responsible Parties, says, “All owners, trainers and exhibitors are accountable for the condition of any horse which they enter or allow to be entered, in any APHA-sponsored or approved event, or event held in conjunction with an APHA-approved show, whether or not the event is approved by APHA.” This rule mimics the above AQHA rule and could be their approach to establishing a “Long-Arm Statute.”
Click for APHA drug-testing policy>>
Overall, if an equine association is going to impose large fines and/or penalties in its equine drug-testing program, then the program should be designed for defense-ability while offering a fair-and-balanced program to the participants, e.g., the use of the split-sample method, DNA testing for verification, one that doesn’t violate the constitutional rights of its members and falls in-line with the rule of law.
In my professional standings and participation in the private security sector, I’ve witnessed, by personal involvement, the legal ramifications of an improperly designed and implemented drug-testing program. Lawsuits have produced very large damage awards for “Plaintiffs” and their attorneys! As a professional security consultant and risk analyst, my job is to design a drug-testing program that falls in-line with the rule of law, is fair and balanced, while at the same time protecting the client (association), its officers and directors as well as the participant. Shouldn’t equine drug-testing programs and their associations use the same philosophy and prudence?
“Until Next Time, Keep ‘Em Between The Bridles!”
Copyright 2014, all rights reserved.
Richard E. “Rick” Dennis
Office/Mobile: (985) 630-3500
Web Site: http://www.windrivercompanyllc.com