The Copyright Fight Over Medical Billing Codes - Plagiarism Today

Last week, the non-profit organization PatientRightsAdvocate.org (PRA) filed a lawsuit against the American Medical Association (AMA) seeking a declaratory judgment that it could reprint the AMA’s Current Procedural Terminology (CPT) codes without violating the organization’s copyright.

In the United States, CPT codes are used by healthcare provides and insurers to track the services they provide and handle billing. In the US, CPT codes are required for all electronic health record transaction and required to bill Medicare, Medicaid and at least 45 states.

However, despite the broad requirement to use CPT codes, the AMA has maintained a copyright on the codes and requires license fees to use the codes. This includes fees on providers, software companies and insurers that use the codes.

According to The Washington Post, CPT licensing fees bring in over $300 million per year for the AMA.

However, PRA is hoping to change that practice. Leaning on a 1997 ruling against the AMA and recognized doctrine involving the copyrightability of laws, they are hoping the court will rule that the CPT codes are not protectable under copyright and are in the public domain.

However, PRA has an uphill battle. The AMA is unlikely to surrender a status quo that it has enjoyed for over forty years. Regardless of the outcome, it’s likely that we are looking at a lengthy battle for the future of US medical billing/coding.

The History and Importance of CPT Codes

Even if you’ve never heard of CPT codes, if you’ve had any contact with the US healthcare system, you have almost had them used to describe your case.

CPT codes are five-digit codes that are used to describe the services provided by healthcare providers. They are essential for both tracking services provided and for billing. It is how providers relay the services they provide to insurers and to government agencies.

CPT codes were first introduced in 1966 by the AMA. Their use quickly expanded (both figuratively and literally), and in the 1980s, the government began adopting them for billing government programs, most notably Medicare and Medicaid.

This created a significant problem. With CPT codes being codified into the law, many began to question whether the AMA had the right to charge for their usage. This was especially true since the AMA had an exclusivity agreement with the government.

This came to a head in 1997 when the company Practice Management Information Corp (PMIC) sued the AMA over this practice. PMIC was a publisher medical books and had sought a volume discount from the AMA publishing CPT codes, they were denied and that prompted PMIC to file a lawsuit alleging both copyright misuse and that CPT codes were in the public domain since they had been codified into the law.

The case went before the Ninth Circuit Court of Appeals. There, the court ruled that the AMA had misused its copyright by requiring exclusivity with the government. But the court stopped short of invalidating the AMA’s copyright whole cloth. Instead, the AMA dropped its exclusivity requirement and the status quo continued as is.

Since then, providers, insurers, software developers and others that make use of CPT codes have been required to pay the AMA a licensing fee. PRA, however, is hoping to change that and it may have a new legal theory to do it with.

Fair Use vs. Public Domain

Though the 1997 ruling seems to have solidified the AMA’s position, a lot has changed since then.

The most notable change came in April 2020. That was when the US Supreme Court ruled in the case of Georgia et al. v. Public.Resource.org, which states cannot use copyright to prevent the distribution of its official legal code. While it is a major victory for public access to the law, it also may not apply directly to this case.

Instead, the more relevant case may be the 2023 DC Circuit Court of Appeals decision in American Society for Testing & Materials (ASTM) v. Public.Resource.Org. ASTM is a standards organization that has had many of its codes codified into various legally mandated building and fire safety codes.

Here, the court ruled that, though ASTM could hold a copyright, that the non-profit publication of the codes was fair use. A similar series of cases involving the International Code Council (ICC) and the for-profit site UpCodes. There, the Third Circuit Court of Appeals ruled that the re-uploading of ICC codes codified into law was likely fair use.

It’s worth noting both of these rulings came after the 2023 Warhol decision, which caused an upheaval in fair use doctrine.

In short, there seems to be a strong fair use argument in favor of PRA. However, that argument is by no means a slam dunk. As such, the organization is also making arguments that the CPT codes themselves are in the public domain.

Ultimately, this lawsuit represents the largest challenge to the AMA’s copyright on CPT codes. But with so much money at...