FOIL Task Force on Racehorse Health and Safety

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Aqueduct racing deaths are not the whole story (republished)

Posted by noonante on January 22, 2015
Posted in: Horse Racing, Political/Social commentary, Politics. Tagged: , , , , , , , , . Leave a comment

Recent news accounts have focused on the dramatic increase in fatalities occurring in races on the Aqueduct inner track.  The 12th catastrophic injury since early December occurred on Friday.  It seems to be a sharp reversal from the progress made by the New York Racing Association since a similar increase in the 2011-12 meet.  Yet that progress has not been replicated in reducing the fatalities that occur during training hours.  Just as troubling, however, is that recommendations by a special Task Force following a spike in racing fatalities in 2011-12 are not being followed.

I studied the record of all fatalities from the web site of New York’s Gaming Commission for the same three-month period, September through November, for each of the last four years.  Racing fatalities had dropped significantly, from a high of 13 in 2011 to a low of six in 2013 and then eight in 2014.  Conversely, training fatalities had increased from a low of six in 2011 to a high of 14 in 2013 before dropping to 10 in 2014.  When the number of racing and training fatalities are totaled, there has been almost no change.  We went from 19 in 2011 to 18 in 2014, with the intervening years being 16 and 20.

The inverse relationship between racing and training fatalities is curious.  It is further amplified when one considers that the high number of racing fatalities in 2011-12 and 2014-15 was matched in each instance by almost no training deaths on the inner track.  In this current period, there has been one fatality in the morning (but three at Belmont).  When a task force in 2012 looked at that meet’s 21 racing fatalities, it found no training fatalities at Aqueduct (but there were seven at Belmont).

Dr. Scott Palmer, New York’s Equine Medical Director, is aware of the disparity between New York’s overall success in reducing racing fatalities in contrast to the lack of success in cutting the numbers from morning training.  I asked him about this last summer, and he identified the factors that made identifying at-risk horses during training so much more difficult than for those racing.

Each horse who is entered to race is examined in the morning by a NYRA veterinarian to determine if the horse is sound, or has a condition that warrants the vet scratching the horse.  The vet should also equipped with records pertaining to the horse that might cause a red flag.  Horses in training, however, do not receive any scrutiny by NYRA’s vets.  While NYRA has on-track personnel to look for problems, including a new position of “Safety Steward,” it is close to being an impossible task to catch every potential problem.  Dr. Palmer did say that he continues to work on possible solutions to the training track fatalities.   NYRA did not respond to my request for comments on training breakdowns.

The spike in Aqueduct’s racing fatalities must be doubly embarrassing for NYRA.  The fatalities in 2011-12 were one of the factors supposedly used by Governor Andrew Cuomo to seize control of NYRA and replace it with a Board of Directors consisting mostly of state appointees.  And last week, the Kentucky Horse Racing Commission announced that it had experienced 12 racing fatalities for all tracks for the entire year.

Catastrophic breakdowns are a difficult issue with many possible causes.  All one has to do is look at a thoroughbred’s legs to realize that an awful lot of weight is being supported by those legs travelling at high speeds.  New York investigated the causes that led to the 2011-12 Aqueduct fatalities by appointing a blue-ribbon Task Force that issued a comprehensive report identifying several possible causes.  The Task Force also made over 100 recommendations that could serve as a bible for any racing jurisdiction seeking to reduce fatalities.

Unfortunately, it is not clear how committed New York has been to implementing the recommendations of its own task force.  Teresa Genaro, writing in Brooklyn Backstretch, has recently written about two shortcomings.

One has to do with the state’s monitoring of compliance with rules and protocols concerning the administration of corticosteroids.  Corticosteroids is a class of therapeutic medications used to treat a broad range of medical conditions (according to the Task Force Report).  It can also, however, have a side effect of masking unsoundness if administered too close to a vet examining the horse.  Repeated administration can also have serious long-term consequences.  The Task Force Report identified it as a potential factor in several of the horses suffering catastrophic injuries during the 2011-12 meet.

Even though treating a horse with intra-articular corticosteroids required a report to the state’s regulatory agency (now the Gaming Commission), the Task Force concluded that the agency neglected to monitor compliance with the regulation, describing it as a “serious deficiency.”  The Task Force recommended that the existing rule be enforced, and that a trainer who claimed a horse should be provided with the record of all IA corticosteroids within 48 hours by the prior trainer.  This last requirement is particularly important given the potentially harmful effects of over-administering the drug.

Nonetheless, monitoring of these requirements by the Gaming Commission has been deficient, according to Genaro.  While the Commission did conduct an audit in 2013, they do not appear to be aware of the extent of compliance with the reporting requirement.  Just as troubling, the transfer of records from one trainer to the claiming trainer appears to be close to non-existent.

According to the Genaro piece, the Gaming Commission spokesperson said that while 600 horses were claimed in 2013, he did not receive a single request for records.  Trainers are understandably reluctant to pursue the issue with a trainer they just claimed from.  The Gaming Commission has developed a software program that will enable the Gaming Commission to notify the claiming trainer of corticosteroid injections reported on the ESAL, a Commission database, and that it should be running in a few weeks.

A second troubling shortcoming identified by Genaro is the manner in which the state has implemented a panel charged with examining the cause of any exercise-related fatality that occurs on a NYRA track.  The Task Force recommended that the NYRA top racing official, the horse’s trainer and attending veterinarian, as well as others be part of the review.  Importantly, the Task Force recommended that the  “report of the review board proceedings should be made part of the [Gaming Commission] investigative report.”

But Genaro found that those recommendations have been watered-down.  The top NYRA racing official, Martin Panza, does not attend the meetings.  In addition, there are no reports generated.  In true government fashion, Panza shifted the blame, saying that a report would have to come from Dr. Palmer of the Gaming Commission, even though the panel is a NYRA responsibility.

But the failure to implement either the letter or the spirit of the Task Report from 2012 does not end there.  In a response to the series of recent breakdowns, the NYRA Communications Department issued a list of what NYRA has done recently to address fatalities.  One of those innovations is that all fatal breakdowns, both racing and training, would be sent to Cornell for a necropsy.  This was recommended by the Task Force Report of September, 2012.  But it was also something NYRA stated it was doing in the summer of 2013.  Apparently, this is yet another important safety recommendation that has fallen through the ever-widening cracks at NYRA.

Given the effort that went into the 2012 Task Force Report by four of the industry’s most respected figures  –  Dr. Palmer, Dr. Mary Scollay from Kentucky, Alan Foreman and Jerry Bailey  –  any serious inquiry into what is happening at Aqueduct should measure the state’s performance against what was recommended.  Instead, NYRA has come up with steps to address the crisis, several of which seem to be of questionable utility.

One is to not allow a horse to race if it has raced in the past 14 days.  Of the 12 recent fatalities, four had a race within the preceding 14 days which might make this seem to be a sensible step.  (Three of the four also had poor finishes in the last race, finishing more than 20 lengths behind the winner.)  But many well-regarded trainers will bring a horse back in a shorter period of time, and I have never observed any relationship between a quick turnaround and a breakdown.  If anything, trainers who do that as a matter of course have a good record with it.

Another is to reduce the number of races.  Again, I am not aware of any causal relationship between the number of races on a card and breakdowns.  But this is something NYRA wants to do anyhow  –  this is the second time the current leadership has proposed this with the stated purpose of safety  –  and I am skeptical when a purported safety rationale comports with what they want to do for other reasons.

If NYRA explained their rationale with supporting data, it would be one thing.  But this smacks of nothing more than a PR fig leaf to get past a crisis.  There are, however, meaningful steps they could take to address this problem, although none of them would provide the short-term jolt that an ill-conceived press release provides.

The most important thing NYRA and the Gaming Commission can do is a serious audit of which Task Force recommendations have been implemented fully, and which have been altered  –  with an explanation for any changes.  If they are fully compliant  –  which obviously appears to not be the case  –  then there is a problem of a different magnitude.  Needless to say, this report should be made public, as was the Task Force Report itself.

One area in particular deserves serious scrutiny.  The Task Force Report detailed practices by the NYRA vets when conducting their pre-race exams that were disturbing, if not shocking.  What has NYRA done to implement the Task Force recommendations in this one area?  Since this is the most proximate exam by a vet before a race, it is of special importance.  If the Task Force Report recommendations are not being followed in this instance, it could provide an answer to the current crisis.

Interestingly, this is not the first time the Cuomo-controlled Board of Directors has faced what seemed to be a troubling increase in inner track fatalities.  That time, back in 2013, Board Chairman David Skorton seemed to panic, coming up with a series of possible steps, including stopping winter racing.  When the situation calmed down, so did Skorton.

But if NYRA and the Gaming Commission do not get on top of this issue, the next crisis will arrive and they will have nothing but PR stunts to address it.  It would be far better if they took the basic management step of measuring what they are doing against the thoughtful recommendations by the 2012 Task Force.

NYRA backtracks on safety

Posted by noonante on November 11, 2013
Posted in: Horse Racing, Political/Social commentary, Uncategorized. Tagged: , , , , , . Leave a comment

See UPDATE on this issue posted on September 15, 2013

In a major reversal, Christopher Kay, President and CEO of the New York Racing Association, is going to undo one of the significant reforms implemented after the report of last year’s Task Force on Racehorse Health and Safety.  Kay has decided that NYRA’s Veterinary Department will report to the Senior Vice President of Racing Operations when he starts his job at the end of the month.  Since the Report, the Veterinary Department has reported its decisions on scratches to the stewards.  While this may seem like nothing more than bureaucratic shuffling, the reporting relationship of the veterinarians was a critical problem identified by the Task Force.

The Task Force was appointed in early 2012 following an uptick in fatal breakdowns during the Aqueduct winter meet of 2011-12.  The panel consisted of four widely-respected experts in racing, including two prominent veterinarians, Scott Palmer and Mary Scollay-Ward, Alan Foreman, head of the national Thoroughbred Horsemen’s Association, and former jockey Jerry Bailey.  The group conducted a comprehensive analysis of the Aqueduct fatalities and released a 100-page report that was universally praised for its comprehensive and thoughtful analysis and recommendations.  Governor Andrew Cuomo expressed his commitment to making equine safety “the top priority of horseracing.”

The Task Force looked at a number of factors that could have played a role in the breakdowns  –  safety of the racing surface, medication rules, violations of the drug rules, and even the aberrant weather for that time of year in New York.  Foremost among their concerns, however, was that the NYRA Veterinary Department reported to the Racing Office.  The Task Force described this relationship as a “critical conflict-of-interest” that “must be changed immediately.”

The conflict arises from the differing objectives of the Racing Office and the Veterinary Department.  The latter is charged with ensuring the safety of equine competitors so that only sound horses are allowed to race.  The Racing Office, by contrast, has a major focus of providing large fields for bettors, because larger fields means an increase in the wagering handle  –  and more revenue for NYRA.  As the Task Force Report observed:

Racetrack management has a vested interest in maximizing field size.  Conversely, field size, or the economic impact of a scratch, must never be a consideration when an examining veterinarian assesses a horse’s suitability to race.

The vets begin each race day by conducting physical examinations of the day’s entrants.  If a horse does not pass this inspection, the vet would recommend a scratch to the Racing Office.  The Task Force Report recounts examples of interference by trainers and Racing Office personnel seeking to overturn the decision to scratch.  In one such case, a trainer dissatisfied with a vet’s assessment of a horse succeeded in getting the Racing Office to bar that veterinarian from examining the trainer’s horses in the future.  The Task Force also reported personnel in the Racing Office refusing or overturning the scratch recommendations of a veterinarian.  The Report described an atmosphere in which non-veterinarians felt “empowered” to challenge the decisions of the vets:  “The success of some of these challenges created an environment in which veterinarians felt intimidated and reluctant to make unpopular scratch recommendations.” 

The Task Force recommended that the Veterinary Department report to the separate agency that regulates racing  – now the Gaming Commission.  Barring that preferred resolution, the Task Force said that the vets should report to the stewards, an approach adopted by NYRA over a year ago.  That is the decision that CEO Kay is now reversing by having the Veterinary Department once again report to the racing operation.

Even if we ignore the wisdom of this decision, the timing could not be more inapposite.  While NYRA’s spring meeting at Belmont experienced a significant reduction in racing fatalities this year, the trend was reversed at Saratoga.  The Belmont fall meet saw four catastrophic breakdowns compared with last year’s six, but the Aqueduct fall meet has already had one in its first week.  But it’s the Finger Lakes Racetrack that is experiencing an increase in fatalities reminiscent of the Aqueduct crisis that sparked the convening of the Task Force.  It’s not a NYRA track, but is one under the jurisdiction of the Gaming Commission.  While the current NYRA leadership fancies itself as the racing industry’s leader  –  and, for better or worse, it is certainly one of them  –  the backtracking on a significant change affecting safety is not the example a leader sets.

We do not know what Chris Kay was thinking when he decided to go against a key recommendation of the Task Force.  There is, however, an unsettling backdrop to the decision that embodies the fears expressed by the Task Force on this “unacceptable conflict of interest.”  The Cuomo Administration, including its Chairman of the NYRA Board David Skorton, is on a mission to stop payments to NYRA from the casino company that operates the Video Lottery Terminals at Aqueduct.  With the VLT revenues, NYRA is in the black;  remove them and they are, once again, in the red.  Making the racing operation profitable without VLT revenues is now the Administration’s prime focus.

But let’s give the final word to Governor Cuomo.   His press release praising the work of the Task Force stated, “NYRA’s organizational veterinary structure was inherently conflicted by reporting to an entity (the Racing Office) whose function is inconsistent with deliberate and careful equine risk management practice.”  That is the structure CEO Kay has decided to bring back to NYRA.

What is NYRA hiding?

Posted by noonante on October 4, 2013
Posted in: Horse Racing, Political/Social commentary, Politics. Tagged: , , , , , , , . 1 Comment

“The New York State Legislature has refused to turn over the information requested by the Moreland Commission….  As the old adage goes, if you’ve done nothing wrong, you have nothing to hide.

We believe the legislature’s position is legally indefensible, ethically repugnant, and disrespectful to the public’s right to know.”

—  Spokesperson for the Moreland Commission, a group created by Governor Andrew Cuomo to investigate possible corruption in New York’s government, as quoted in the Times Union.

When the Governor forced out the former Board of the New York Racing Association and replaced it with one of his own creation, there was an implicit  –  if not explicit  –  message that the prior Board operated in secrecy and served primarily its own private interests.  Because the new Board is now under state control as a result of Cuomo’s legislation, it is now subject to New York’s Freedom of Information Law or “FOIL.”  So how open have they been?  I have submitted several requests for documents and have regularly been denied access even though any reasonable person would conclude the documents should be public records.  Here are four:

  • CEO Chris Kay’s contract and performance standards entitling him to a bonus of $250,000:  

When NYRA’s new Board decided to hire a new CEO, the Compensation Committee concluded that it would be untoward to have a government agency pay at the level of the prior permanent CEO (reportedly about $460K) and came up with a bifurcated package  –  a base salary of $300,000 and eligibility for the $250,000 bonus.  David Skorton, Cuomo’s appointment as Chairman of the Board, emphasized that he wanted to be “very public about this,” and that as a “hard grader,” the bonus was not just a ruse to get the salary over the prior level.

So I asked for the records proving Skorton’s claims, specifically Kay’s contract and Skorton’s performance standards.  NYRA denied my request, saying it would be “an unwarranted invasion of Mr. Kay’s personal privacy.”  In an unusual twist, NYRA further stated that Kay’s “significant privacy interest” exists because he is not a public employee. So a guy bringing home $5769.23 each week and is in line for a cool quarter of a million has a greater right to privacy than the person answering phones at the DMV or a toll collector on the Tappan Zee bridge?

NYRA’s position is, of course, ridiculous and an argument they should be embarrassed to make.  It is also contrary not only to Chairman Skorton’s supposed desire to be “very public about this,” but to the letter and spirit of New York’s public records law.  (Let’s not forget that Kay’s selection was a secret process  –  for understandable reasons  –  but makes his contract award unlike so many others where you at least have a public procurement that defines what the state is buying.)  If there is any truly personal information in either the contract or the performance standards, it can be redacted  –  as the law permits.  New York’s highest Court has defined such information as that which “ordinarily and reasonably be regarded as intimate, private information” –  not what one finds in the typical employment contract.  But the CEO’s goals for NYRA, or any severance agreement?  Since the state’s takeover of New York’s racing last year, many have wondered what the real agenda is, and whether there is even a plan for the sport.  NYRA appears determined to keep us in the dark on both questions.

  • NYRA’s efforts to implement the recommendations of a Task Force investigating equine fatalities:

After a number of racing fatalities at the Aqueduct meet in early 2012, a Task Force was appointed to investigate the causes and make recommendations. The Task Force consisted of some of the most respected voices in racing, and came up with a report that was comprehensive and far-reaching.  There were 39 primary recommendations and 93 subsidiary ones.  We know some significant ones were implemented because they required regulations from the state’s Gaming Commission.  What we do not know is what NYRA has done to implement the recommendations (other than window dressing such as a hot line that as of August had received one call that could not be substantiated).

NYRA’s actions  –  or inaction as the case may be  –  are significant.  There was a dramatic decrease in racing fatalities in the latter part of the Aqueduct meets that carried over to the Belmont spring meet.  Unfortunately, that trend was halted when the Saratoga meet saw as many fatalities as last year’s meet, and the Belmont fall meet has seen as many racing fatalities (two) in its first two weeks as the entire spring meet  –  and that doesn’t include  three recent catastrophic breakdowns on the training track.

The factors causing a breakdown are complicated ones, not lending to simplistic analyses and solutions  –  a conclusion convincingly made in the Report of the Task Force.  The decline in breakdowns this year may have been the result of actions by the Gaming Commission or by NYRA  –  or it may have been the result of pure luck.  The same can be said about the recent increase.  But what we do not know because of NYRA’s refusal to release any records is what may have contributed to either the decline or the increase.  There is at least one such analysis, prepared by Dr. Scott Palmer who was a member of the Task Force, that compares the Task Force recommendations with what has actually been done.  I have been trying to get it since April 30.  No one could expect NYRA to have implemented fully its portion of 132 recommendations, particularly since many of them required a substantial amount of work.  But a progress report would be a useful way of measuring whether NYRA is on track to improve equine safety or has completely dropped the ball.

  • Chairman of the Board Skorton’s decision to make the attorney for Rudy Rodriguez a “Special Advisor” to the Board:

At the February meeting of the NYRA Board, Chairman Skorton announced that he had appointed Attorney Karen Murphy as a “Special Advisor” to the Board.  He neither explained the reason for the appointment, nor described her expected role, nor sought the Board’s input.  Attorney Murphy is well-known for her representation of trainers accused of drug violations.  Indeed, shortly after her appointment she was in the news as trainer Rudy Rodriguez’ attorney following allegations that one of the trainer’s horses had tested positive with an unusually high level of a medication.  According to the Daily Racing Form, Murphy accused NYRA of not taking proper steps to monitor the barn area, and even raised the question of whether an unauthorized person had entered Rodriguez barn and administered the drug overdose.  Around this time, Rodriguez planned on entering a horse in the Kentucky Derby.  In an unusual step, Kentucky’s racing authorities required Rodriguez to appear before them before they would issue him a Kentucky license.

This appointment became even more puzzling when Murphy was “disappeared.”  At the next Board meeting, she was not in attendance, nor was she identified as a “Special Advisor” who was not present.  There was no explanation for her whereabouts or lack thereof.  It was reminiscent of the “back in the USSR days” when someone photographed on the Kremlin wall was not there next time around.

I thought her appointment was a matter of interest given Chairman Skorton’s repeated statements of concern for equine health and safety, and the interest expressed by some Board members for NYRA to take a strong role in developing “house rules” that would root out the cheaters and subject them to increased penalties.  I am not suggesting that trainer Rodriguez violated the drug rules in this instance (although he did serve two suspensions recently for drug infractions).  Nor do I think an attorney should be held responsible for alleged misdeeds of a client.  But if Chairman Skorton needed some outside expertise on drug violations, he perhaps could have picked someone who did not bring to the table the perception of a conflict-of-interest.  Apparently NYRA’s attorneys agreed since one of the reasons for denying access to documents was the attorney-client privilege.  While their argument may relate to her “unappointment,” it would not pertain to any documents explaining why she was named in the first place.

  • Memo from New York’s Committee on Open Government requiring NYRA to comply with the public records law:

There could not be a better example of NYRA’s blatant flouting of the public records law than their response to my request for documents from other entities concerning NYRA’s obligations to act under both the public records law and the Open Meetings Law.  They denied any such documents existed, even though there is an opinion from the Committee on Open Government  –  the state agency with responsibility for overseeing both of these laws  –  stating that NYRA was indeed subject to them.  Chairman Skorton was copied on the memo.

*****

In commenting on the Legislature’s refusal to turn over documents to the Moreland Commission,  Governor Cuomo said, “This effort is all about restoring the trust, and restoring people’s faith in government, and I think the more information the better, especially when there are real questions people have been asking.”  (Quote is from the Times Union.)  Cuomo is at his officious best when talking about the shortcomings of others.  When he dismounts from his high horse, perhaps he will explain why he does not apply the same standard to an agency he created with much fanfare a year ago, supposedly to address those questions of public trust.  As for NYRA’s leaders, they may want to consider how far they are willing to sacrifice their own credibility in their effort to serve the Governor.

Update:  After completing this post, I came across a reference in the Times Union to a significant capital project at the Cornell College of Veterinary Medicine.  NYRA’s Board Chairman David Skorton is the President of Cornell.  According to the Cornell Chronicle, the $63 million project is “predominantly funded by New York state,” and will entail the building of 65,000 square feet of new space and renovating an additional 33,000 square feet.