Position statements: A licensee's secret weapon for avoiding regulatory problems

The North Carolina Medical Board is committed to providing our licensees with tools that will help them be successful in their practice. In this episode, we talk with Todd Brosius, one of the Board's Deputy General Counsel about the Board's position statements, how they are developed, and how our licensees can use them as guidance for avoiding Board discipline. Learn more here. 

Host: Jean Fisher Brinkley, Communications Director, North Carolina Medical Board
Guest: Todd Brosius, Deputy General Counsel, North Carolina Medical Board
Producer: Sylvia French-Hodges, Communications Specialist, North Carolina Medical Board

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Email your questions to: podcast@ncmedboard.org.

Transcript

Intro music: 0:00 

Podcast introduction: 0:10

When we talk about the North Carolina Medical Board on this podcast, whether it’s to the public or to the medical professionals it regulates, we generally mention two things: Licensing and Regulation. Those, of course, are the two main responsibilities of the Board. Today we are going to be talking about a third activity that is very important to how NCMB fulfills its mandate to regulate medicine and surgery for the benefit and protection of the people of North Carolina. And that is policy making. This is Jean Fisher Brinkley, Communications Director for the North Carolina Medical Board and this is MedBoard Matters. Thank you for joining me. To help me explore how the medical board creates policies to guide and support its licensees, I have enlisted the help of one of the Board’s Deputy General Counsels, Todd Brosius. In addition to his work prosecuting disciplinary cases for the Board and overseeing staff in the Board’s Legal Department, Todd is deeply involved in the creation of the Board’s formal position statements. If you don’t already know about the position statements, by the end of this episode you should have a pretty good idea of their value and why you might want to be using them in your medical practice.

Interview with Todd Brosius: 1:26

JFB : Todd, thank you so much for joining me. I really appreciate it. I wondered if we could start our conversation with you just giving a brief introduction of yourself. 

TB: Yeah, sure. My name is Todd Brosius. I'm Deputy General Counsel at the North Carolina Medical Board. My responsibilities is I staff the Board’s Policy Committee and work with the committee members and so forth, and working on the position statements. And then I have other roles at the Board as well. 

JFB: Thank you. In preparation for our conversation, I did do a little homework. And as best I can tell, the Board started creating position statements in the late 1990s. So a little over 25 years. And while that may seem like a long time to the young people who are listening, relative to the Board's mission dating back to 1859 of licensing and regulation, it is a relatively new activity for the Board to engage in. So just to set the scene, could you start just by talking about why the Board has a Policy Committee and what the committee does? 

TB: Yeah, sure. So, you know, the main things that the Board or areas that the Board covers are really licensing and regulation, which, you know, tends to include discipline. And I think the Policy Committee really kind of connects some of those issues. It looks for things that, you know, in terms of trends that are happening within the medical community, areas that the licensee population may need some guidance on and that's, you know, Policy Committee will take that up and generally speaks through its position statements. Sometimes there are other means in which the Policy Committee will speak, but generally the Policy Committee is looking to kind of set the regulatory policy within its licensee population.

JFB: I kind of love that, because one of the things is that, you know, when people think of the Medical Board, they immediately think of the Board as a disciplinarian. And, you know, there certainly can be quite a bit of fear amongst licensees about the Board. And one of our goals with this podcast episode is to let people know that we have a whole standing Board Committee that is dedicated to providing guidance, that really, I don't think I'm going too far in saying the guidance is intended to help keep them out of trouble. 

TB: Yes, for sure. That's really ultimately the goal of the Policy Committee is to I mean, if you look at the position statements, the aim behind them is to provide enough guidance to the licensees so that people don't get in trouble. I mean, that's really the central focus of the Policy Committee is to provide, you know, what we've called in the past, safe harbor provisions. You know, if you follow the Board's guidance in this particular area, you know, you are not going to be subject to discipline by the Board. 

JFB: I kind of get ahead of myself. I was going to ask you to define what exactly a position statement is. You sort of got a little bit of a start, but I guess anyway, what exactly is a position statement? 

TB: Yeah. So the Policy Committee has explained a little bit, if you ever go on the Board's website and you look under the Board's position statements, the first one there is what are the position statements of the Board and to whom do they apply? And there's a little explanation in there, but basically a summary of that is that the position statements are interpretive statements that are, as we talked about, intended to give guidance to licensees and generally help licensees in issues where there might be some complicated ethical issue or a practice issue to give some guidance so that licensees can avoid discipline with the Board. And in turn, the Board is trying to carry out its mission, which is to protect the public. And so, you know, generally those policies are going to be aimed at public and patient protection. 

JFB: So how does the Policy Committee decide when a position statement is needed? 

TB: That's a good question. So I would say there's probably about three main avenues by which a position statement might either get reconsidered, one that already exists, or that one might get generated. And the committee, as a matter of form, goes through all of the position statements it has on a schedule. And it's roughly a four to five year schedule of reviewing all the position statements. And so there's going to be a periodic review of any of the position statements that already exist. In addition to that, the disciplinary cases that come before the Board can provide sort of a window into where there might be confusion about what the Board's expectations are in a particular issue. Sometimes what you will see is that the Disciplinary Committee will take up an issue, and they maybe they've seen it, you know, recur once or twice or, you know, a few times and will decide, you know, I think that there's confusion about this particular topic. And so they'll make a referral to the Policy Committee. And that will generate either a new position statement or perhaps a need for clarification in an existing position statement. And then the third one is just sometimes it happens internally here, with the Board and its staff can happen, you know, with the Board's legal staff or, the Office of the Medical Director at the Board, or other staff who handle external inquires. If we notice that there is a growing level of confusion by our licensees on a particular issue that will tend to bubble up, and at some point, someone will tap me on the shoulder and say, hey, it'd be really great if we could address this particular issue. So, you know, we'll take that from the staff internally to the Policy Committee to consider the issue. And then if there are any potential changes that the committee wants to make. 

JFB: Okay. So it's kind of got some responsiveness built into it. You're just kind of keeping eyes and ears open and looking for issues that could potentially be tricky for licensees. 

TB: Yeah. There's kind of a scheduled opportunity for us to continue looking at our position statements, and they can be taken out of turn at any particular time because the committee feels that there's a need to clarify a position on a particular area. 

JFB: So, who writes the position statements? 

TB: That is very much a collective effort. Anyone who would attend a Policy Committee meeting, you would see that oftentimes what we will do as we're reviewing position statements is Jessica Glendenning, who also staffs the Policy Committee, will send out the position statements to the committee members asking for feedback. And the committee members will look at the position statements, oftentimes, we'll get comments from all of the committee members. And then as we come together at the committee meeting, we will discuss, you know, those potential changes. Ultimately, it comes down to a vote. I often myself get assigned to draft some language, and the committee will give me the idea that it wants to communicate and the time constraints to the Policy Committee don't allow for us to do it there. And so I'll write, I will be sent off to do some drafting on a position statement. And then sometimes we get suggestions both from outside stakeholders, internally from staff here at the Board. The position statements are very much a collective effort between the Board staff and to some extent the public. 

JFB: Okay. So is it all original content? Like, I mean, it's all just coming from NCMB or do you look to external resources to inform the content? 

TB: So sometimes that can work. There's, I say there's a spectrum of how that happens. Sometimes as we go into looking at reviewing a position statement, we will provide some additional context. And sometimes that that might the, other, I'll just say in the field of ethics, like the AMA ethics opinion, anyone who's seen the Board's position statement on prescribing of controlled substances for treatment of pain, that derives from the CDC guidance that's taking place. So sometimes we'll have outside influences and information that we will take to the Board and then the Board, you know, will sort of parse through that and figure out, you know, what of that information is useful to put in a position statement to clarify whatever point it's trying to make within that statement at that time. 

JFB: Right. And then that way there's consistency, you know, across the medical profession. While medicine can vary from state to state, it's not like we're a whole different universe here in North Carolina. You want somebody who relocates to North Carolina from another state to be able to fit in, so to speak.

TB: Yeah, correct. I mean, there's definitely some laws and regulation, like, you know, there might be some variance, from state to state. But a lot of the big principles within medicine are universal across state lines and just within the medical community. 

JFB: Yeah. You mentioned that the Board regularly reviews its position statements and updates them as needed. Could you talk about a recent experience doing that that would illustrate how that process works, and how you gather feedback and decide what changes are needed and that sort of thing? 

TB: Yeah, sure, a good one and that kind of illustrates the way these matters might happen both before the Board and as they get to the Policy Committee is the Board's position statement on self-treatment and treatment of family members. The Board had a couple of cases involving physicians who were treating themselves for chronic conditions, and those that are the reason out of the Board's Disciplinary Committee and the Disciplinary Committee made a referral to the Policy Committee, asking that it take up this issue of what are the Board's expectations with regards to physicians treating their own chronic conditions. And so the Policy Committee took that up, looked at it, studied the issue, and then made some language that it was hoping would clarify that the Board's expectation is that its licenses do not treat their own chronic conditions. You know, there's there exceptions to self-treatment. But in terms of long-term care, the Board was trying to communicate that it didn't do that. The Board then sent the draft of that position statement out to what we call our stakeholder population. And that is a number of, organizations and individuals throughout the state who are involved in regulating medicine or just in the, the medical industry that we, we send information out to and asked for feedback in, in this case. And we also posted it on our website, and we got a wealth of feedback on that one from both the public and from our stakeholders. And what was clear was that the message that the Board was trying to communicate had been lost. And I think a number of folks who were reading what the Board had drafted felt that what the Board was saying is like, no one can self-treat or treat their family members for any condition, which wasn't what the Board was trying to say. And so then the Board took that information back, made additional changes to the position statement, where I think what the Board's intention was…was made more clear. And we sent those back out to stakeholders. The stakeholders said, yeah, that makes sense. And ultimately the Policy Committee went ahead and adopted the position statement. 

JFB: Yeah. And if I recall, that took several months. 

TB: It did. I mean, it took I mean, that was probably a six to eight month process that I know people know, but the Policy Committee meets every couple of months. So, you know, we send stuff out to our stakeholders. We try to bring that feedback back to the committee and then the committee processes it and does what it does. But you know, that even just a quick turnaround can be about a four month process. 

JFB: Right. And you mentioned stakeholders and the public, not sure which group licensees fall into, but we also put that position statement in the forum newsletter so that we can gather feedback directly from our licensees as well. You've kind of already addressed this, but I did just want to make clear that the position statements are fluid, and as we've discussed, you know, they're reviewed regularly. How does the Board ensure that the positions remain relevant? Because obviously, you know, we've been talking about the Board creating position statements over a 25-plus year period. A lot has changed in medicine. So how does the Board make sure that position statements are still meaningful? 

TB: I hope that the way it happens is that, I mean, we do try to look at them, you know, about once every four years or so, and we do a little bit of a contextual review of as to any particular topic, that when a position statement is being brought up for consideration before the Policy Committee. So I think that helps keep it relevant that there are also a number of groups who follow the Board's Policy Committee, and we welcome feedback when we hear from, you know, some of the other interest groups with regards to our licenses as well, the Medical Society may provide some input for us. You know, other organizations within the state will also contact us. So. 

JFB: Yeah, and as we've discussed, you know, this was not really because the position statement was no longer relevant, but, you know, position statements, it doesn't happen that often that an issue just grows to the point where it's sort of out of the Board's sphere, you know? But it does happen.

TB: What usually tends to happen is what is a what tends to be a small issue, and a relatively succinct position statement can blossom.  

JFB: Yeah.  

TB: Into other issues. You know, I know one that folks have talked a lot about is, you know, what is and this is a probably a good example, talking about artificial intelligence has come up a lot in any context, including the medical community. And we're trying not to lead the policy discussion with regards to artificial intelligence, but be cognizant of the fact that it's there. And so there's some inclusion of language in our position statement on medical records that contemplates that some medical records may be generated by artificial intelligence, but we don't have an artificial intelligence position statement at the same time. So, so sometimes you get these sort of one offs that come in and sort of expand the guidance that's being provided in a particular position statement. 

JFB: Yeah. I'm glad you mentioned that actually, because as you know, I do media relations for the Board, I have had multiple questions from reporters asking if the Board does have a position on the use of AI in medicine. And as you've just said, the Board does not. And I think that that's a great illustration of what we talked about before, that the Board is trying not to set the policy, or tell our licensees, here's how you should be using AI in medicine, for one that's still evolving and we're still learning, you know, all of the potential there. But that's great because we really are trying to help our licensees navigate. We're not trying to direct them for sure. 

TB: The Board is not trying to stop ingenuity and invention and progress within the medical community. So, you know, I feel comfortable saying that the Board wants to help guide those innovations, but it certainly is not trying to stifle them by being overly restrictive. 

JFB: Exactly. So we've talked a lot about how the position statements are intended to guide licensees. Let's get down to brass tacks and discuss how a licensee might actually use the position statements on a day-to-day basis. 

TB: So if you go on our website and one of the most prominent tabs on there is the Board's position statements. And if you click on there, you can look for the position statements individually, but there's also a link where you can pull them all down. But you can in any event, you can look through the table of contents on the Board's compendium or on the website and look for the particular issue that you might have. And, you know, we hope that if there's a question that it's been addressed, I mean, most of these position statements to some degree are like frequently asked questions in a policy statement. So a lot of the things that our licensees would inquire about are included in there. That said, if there's a follow up question after reading it to see, you know, if someone is confused, obviously we take inquiries from the public as well. So, you can also contact the Board to ask about, you know, what exactly did the Board mean in this position statement, or, is there some further guidance that can be provided? 

JFB: Okay. So we've talked about how position statements can help licensees stay out of trouble, can they get in trouble if they don't do exactly what it is recommended in a position statement? 

TB: So I'll give you qualified, “Yes.” As we talked about, the position statements don't outline the law or the regulations within medicine. They're attempting to interpret them. So someone may do something that is contrary to the guidance provided in a position statement. They're not going to be charged for violating the position statement. If there were if it were to turn into a disciplinary case, the charges would be around the law, the ethical principle, the standard of care, the issues that give the Board disciplinary authority, which are all found in, North Carolina General Statute 90 dash 14 A so, those bases for the Board to take action. But the violation of a position statement is not a basis for the Board to take action, but the position statements include a fair amount of reference to the actual laws and regulations that are enforceable. So, for instance, I mentioned the self-treatment position statement earlier. Included in there are citations to board regulations that prohibit the prescribing of controlled substances to family members. So if you prescribe a controlled substance to, let's say, your spouse, that would be both a violation of the rule that prohibits. And it would also be contrary to what the guidance says that the Board’s provided in the position statement. 

JFB: Right. But conversely, if you do all of the things that are recommended in the position statement, that is going to look favorably on you if some issue does come in. 

TB: Yeah, that is certainly the intent. We hope that when you get to this fork in the road, whether it's an ethical issue or a practice issue that you choose the one that position statement has tried to direct you towards, and if you do so, and that should provide sort of, as we talked about, a safeguard or safe harbor for the actions you take. And, and again, I always say if you're still stuck if after you've looked at it, you still have a question, you know, contact us. Well, you know, we're here to answer those types of questions as well. At least you know, we can tell you what the Board's expectation is. 

JFB: Gotcha. Some licensees are certainly already familiar with position statements because they are used. I do get inquiries and I'm sure you do as well about the position statements, but others may not know that these exist. So I was wondering if you could recommend okay, give a little homework assignment to some of our licensees who are new to position statements. What would be a good place to start if you're a North Carolina physician or PA taking your first look at the position statement compendium? 

TB: I'm looking at the table of contents as we're talking. You know, there's some that are pretty fundamental to the practice of medicine right off the bat. 2.1.1 is the “Licensee Patient Relationship.” I mean, you know, providing guidance system when that relationship is created, how you might want to end it, so forth, and what the Board's expectations are with, with regard to that. “Guidelines for Avoiding Misunderstandings During Patient Encounters and Physical Examinations,” I mean, anyone in clinical practice probably can benefit from the guidance that's provided there. 3.1.1 is “Professional use of Social Media.” There's also included in that section a position statement on “Medical Records and the Writing of Prescriptions.” There's a lot there if you're prescribing for pain the Board's position statement on the policy for the “Use of Opioids for the Treatment of Pain,” is there. 

JFB: Yeah, that would certainly get you started. 

TB: That'd be good. Plenty of homework. Yeah. Finish that assignment I'm happy to to come back with some more. 

JFB: Yeah. And since you have mentioned the “Self-Treatment and Treatment of Family Members” position statement, I'll add that one to the list.  

TB: Sure. 

JFB: For, for extra credit let's say, because it is one that a lot of our licenses can be caught by surprise. If they aren't aware that that exists. 

TB: Yes. Yeah. One other one would be “Physician Supervision of Other Licensed Health Care Professionals,” which provides some guidance in the Board's expectations for any of our licensees who are either supervising advanced practice providers or other health care providers, or who are being supervised as well. So. 

JFB: Yes, that's a great one as well. Obviously, you know, you were talking about how sometimes, you know, physician statements arise because we see issues in Disciplinary Committee, we see issues with supervision again. And again and again. So yes, definitely a good one to review. And I will say I was going to ask you, obviously the position statements are developed mostly with our licensees in mind, but do you think that they're of value to patients? And I'll jump ahead of you, if I may. I'm telling you, one of the ones that you just mentioned, the “Licensee Patient Relationship,” is one that I use pretty frequently with patients who call with some issue. Often it is an issue, you know, because they have been released from the practice. They've been dismissed from care, and they were not provided any refills for their prescriptions, or they're having difficulty getting their medical records. And I use that licensee patient relationship one, to point out that that is considered a professional obligation of the licensee to help them with those things. And, you know, sometimes the patient will go with that position statement in hand and go back to the practice and say, hey, I checked with the Medical Board and it says that you're really supposed to do these things. 

TB: Well, that's a great example of how a patient can use the position statements and the guidance that's provided there is, you know, and I think in other contexts that would work as well, which is, you know, as a patient, one of the best things you can do is educate yourself. And one of the things you can do is educate yourself on what the expectations are on your provider. And I'm not saying that you necessarily need to take these into your provider and sort of read them the right act, because, you know, ultimately it is a relationship. And so hopefully, you know, you can use that information to guide your conversations with your provider so that hopefully you can come to a place where both sides are happy with the outcome. 

JFB: Yeah, that's really all my prepared questions. Is there anything else that you would like to mention about either the position statements or the work of the Policy Committee or anything else? 

TB: Yeah, I would just say, you know, I do think the work that the Policy Committee does is valuable and providing guidance, but we are completely dependent on both our licensees and the public to bring issues to us, or when they feel like a policy statement isn't fitting the actual, reality on the ground, I think the Board appreciates knowing that and getting that information. So, I just encourage folks to reach out and certainly you can reach out to me, you know, anything that you send to me, I can act as a conduit of information to the Policy Committee. 

JFB: Great. Well, thanks again. It's been a pleasure. 

TB: Thank you very much. 

Episode closing: 22:12

Well, that brings us to the end of this episode of MedBoard Matters, which is our final episode of 2025. Thank you for listening. Visit our show page at www.ncmedboard.org to find a link to the Board’s full online collection of position statements as well as a link to a downloadable .pdf compendium of the position statements. NCMB reorganized the position statements by category a few years ago to make them easier to reference, and we do update the compendium, as well as the website, every time position statements are amended or adopted throughout the year. If you have comments or questions about this episode, please email them to podcast@ncmedboard.org. Thanks again for joining me. We’ll be taking a short hiatus in January, but I hope you will come back for more MedBoard Matters in 2026.