It’s been almost 20 years since the acronym HIPAA entered the American lexicon. Shorthand for the federal Health Insurance Portability and Accountability Act of 1996, HIPAA was promulgated to, among other things, regulate the use and disclosure of Protected Health Information (PHI) and standardize electronic health care transactions for billing, reimbursement and other purposes.
Everyone has been exposed to HIPAA. When filling out those numerous clipboard information forms in the doctor’s waiting room, a HIPAA release form is included. With some limited exceptions, a doctor may not speak about a patient’s condition or treatment with anyone, including family members and friends, without the patient’s express consent.
Do the privacy aspects of the HIPAA statute make sense? It’s obvious that our health is one of our most guarded secrets. Like it or not, certain conditions and illnesses like depression, cancer and alcoholism carry public stigma, our enlightened 21st century society notwithstanding. Moreover, aspects of human dignity must be considered. Think about two doctors in a hospital elevator nonchalantly talking about the hopeless prognosis for the elderly lady in bed 602, not aware that her daughter is riding the elevator with them. Pre-HIPAA, such unfortunate breaches were commonplace. Making sure our confidential health information is judiciously safeguarded has its place.
Should racehorse veterinary records be afforded HIPAA-like privacy protection? Do reports regarding the administration of medication or the performance of therapeutic procedures qualify as protected health information? If the questions sound somewhat absurd, consider that equine health records are treated as rather secretive data, the disclosure of which generally can’t be compelled.
This summer, the issue of veterinary record transfer was discussed at theGrayson-Jockey Club Welfare and Safety of the Racehorse Summit. The conversation mostly involved the claiming realm. When a trainer successfully claims a racehorse on behalf of an owner, he or she gets the horse, and nothing else. The conditioner receives no information about any special feed or vitamin regimens, quirks or idiosyncrasies; much less any information about prior illnesses and surgeries.
Inasmuch as veterinary records are the property of the owner, it is it’s generally believed that vets can’t turn over treatment records to new owners without the permission of the owner who authorized the treatments. Interestingly, this may not legally be the case. In New York, for example, Education Law § 6714 governs the disclosure of treatment records. The relevant subdivision states:
“Upon written request from the owner of an animal which has received treatment from or under the supervision of a veterinarian, such veterinarian shall provide to such owner within a reasonable time period a copy of all records relating to the treatment of such animal.
For the purposes of this section, the term "records" shall mean all information concerning or related to the examination or treatment of the
animal kept by the veterinarian in the course of his or her practice…”
Nothing in the subdivision appears to prohibit a veterinarian who previously treated a horse from disclosing those records to the animal’s new owner. In fact, it might mandate it if a request is made. Of course, identifying the horse’s previous treatment providers might prove difficult. This is especially true in the harness realm, as many of our horses are on private farms and training centers, as opposed to the backstretch of a racetrack where a trainer’s choice of vet is open and well known.
Here are some points to ponder before you decide what’s best for the industry:
- Horseracing, like other professional sports, is a competitive endeavor. Why should trainer Smith be obligated to turn over a horse’s records to trainer Jones, who might subsequently race the horse against one of the other horses in trainer Smith’s stable?
- Unlike virtually all other professional sports, however, wagering on the outcome of contests is perfectly legal. Why shouldn’t trainer Jones have all available prior veterinary information at his disposal in order to assist the horse to compete to his maximum ability? After all, isn’t that level of performance what the betting public expects?
- Isn’t the health and safety of the animal always paramount? While there should be no requirement to tell anybody anything about the horse while in trainer Smith’s possession, once control is transferred to trainer Jones, shouldn’t the new conditioner be able to do everything possible to promote the horse’s wellbeing? Horses can’t talk, but the human previously charged with supporting the animal’s health can offer much in the way of assistance. Once the claim is consummated, why can’t trainer Smith’s vet disclose to trainer Jones exactly what he’s gotten his owner into, thereby assisting Jones’ vet to properly maintain the horse?
- Some trainers are known to be specialists at getting horses to the winner’s circle first time off the claim. The lack of the horse’s health history certainly doesn’t hamper these trainers as much as others. The key to victory might just be trainer Jones’ unique husbandry, which is performed without, and possibly in spite of, whatever trainer Smith thought the horse needed.
- If you’ve read this far, you’ve already thought about the metaphorical elephant in the room: How many treatments, procedures and administrations are done under the radar, such that there are no records in anyone’s possession regarding their performance? Whether accomplished by a phantom vet or the unscrupulous trainer Smith himself, no amount of mandated rules will help trainer Jones know what has really been done to the horse. In this realm, couldn’t incomplete records be worse than no records at all? Stated another way, if trainer Jones can’t justifiably rely on the records provided, do they have much value at all?
- On this last point, if trainer Jones later discovers that the records provided are incomplete, can Jones’ owner sue Smith’s owner for damages, or even void the claim? Would the legal issue only trigger if the records were found to be substantially incomplete? Materially incomplete? Consider the damage this would do to the claiming game.
- In this same vein, what about yearling auctions? Inasmuch as there are absolutely no warranties for anything, save some express limited guarantees regarding freedom from certain conditions and procedures, why should the turnover of information be required? If every illness, injection or surgery is to be disclosed, would nondisclosure, innocent or otherwise, trigger lawsuits? In effect, would the traditional “buyer beware” nature of auctions be forever changed?
Assuming the propriety of the mandatory exchange of veterinary information, a broader discussion involves just how it would be accomplished. Vets keep records, so should a rule simply state that every vet who previously treated a horse is required to turn over data to a new owner on request? Such a protocol would seem cumbersome, as all prior vets, including those of owners remotely in the horse’s past performance chain, would need to be identified.
Rather, should regulated disclosure involve an electronic database repository, such that a racing commission could review the information at any time? In New York, trainers or their veterinarians must report all corticosteroid joint injections within 48 hours through an Equine Steroid Administration Log. Should this form of reporting be expanded to include every administration of a substance or completion of a procedure? While on the subject of horse health, should the database include records of vaccinations, shoeing and teeth floating? Who would bear the expense for such reporting and database maintenance? What would such a system do to the cost of veterinary care?
Moreover, given the multistate nature of Standardbred racing, such a protocol would need to come by way of interstate compact to be efficacious. For example, assume Pennsylvania has a record disclosure rule. If I claim a horse at Pocono Downs, what good would the rule do me if the horse spent the majority of its career in a state where no similar rule existed?
Finally, if the formidable task of populating and maintaining a database is to be undertaken, shouldn’t it simply become information freely accessible in real time to handicappers? While betting on football isn’t legal, player injury reports are openly disseminated. Since the bettors know if a horse got a Lasix® shot this afternoon, shouldn’t they also know about the epiglottic entrapment corrective procedure the horse underwent last year? Why can’t the savvy punter research whether a horse’s dam ever foundered, or whether his sire suffered a bowed tendon as a 2 year old? In fact, shouldn’t veterinary reporting extend to treatment of breeding stock?
To be clear, the USTA doesn’t have any pronounced opinion or official position on any aspect of this subject. The issue is presented because it has been recently raised in a public forum. As folks who care about this industry, your opinion about what should or shouldn’t happen is important. Think about it, and let us know how you feel.
Chris E. Wittstruck is an attorney, a director of the Standardbred Owners Association of New York and a charter member of the Albany Law School Racing and Gaming Law Network.