Fair Use Justification of CPT® Codes in EP Coding

The following is a formal justification for use of a limited number of CPT® codes under the US Copyright law fair use exemption in the soon-to-be-released mobile app EP Coding.

Introduction

As CPT® codes are copyrighted by the American Medical Association, it is important to make the case that use of a very small percentage of these codes, with paraphrased descriptions in a mobile app is covered under the Fair Use doctrine of US copyright law. Note that the AMA does acknowledge the possibility of fair use of CPT® codes. Also please note the following:

CPT copyright 2012 American Medical Association. All rights reserved. CPT is a registered trademark of the American Medical Association.

Fair use criteria

Four criteria are used in determining fair use of copyrighted material:

• The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.
• The nature of the copyrighted work.
• The amount and substantiality of the portion used in relation to the copyrighted work as a whole.
• The effect of the use upon the potential market for or value of the copyrighted work.

The purpose and character of the use, including whether such use is of a commercial natue or is for nonprofit educational purposes.

EP Coding is intended not for coders, who definitely need the AMA documentation, but for physicians who need to document with codes (in addition to documentation in their procedure notes) the procedures that they do. With the advent of EHR (Electronic Health Records) there is frequently a need to enter codes by the physician directly into the system. This is true of the EPIC EHR that I’ve had experience using. Entering codes is not an easy task. As the CPT® descriptions are obtuse, at least as presented in EPIC, looking up codes by description is difficult if not impossible. For example, a search for “PPM” which is a common abbreviation for pacemaker yields 0 hits in EPIC. Searching for “PACEMAKER” or “PACER” yields a very long list of hits, but they are all hardware codes for individual pacemaker types and not procedure codes. Searching by code, such as the code for dual chamber pacemaker implant, code 33208, yields this:

33208 PR INS NEW/RPPLCMT PRM PM W/TRANSV ELTRD ATRIAL&VENT

Hardly intuitive! Similarly searching for “ABLATION” yields over 50 choices, many not related to cardiology, and search for “AFB” yields “AFB stain” used to diagnose tuberculosis. The actual code for AFB ablation, 93656 yields this:

93656 PR EPHYS EVL TRANSPTL TXATRIAL FIB ISOLAT PULM VEIN

So there is a need for a “cheat sheet,” a list of codes relevant to his or her specialty that the physician carries around to help remember the codes and enter them in the computer. This list of codes may not be enough however. One must remember that one can’t code transseptal puncture or LA pacing and recording with AFB ablation, or that 3D mapping is already included in VT ablation. This sort of information is ideal for encoding into a mobile app.

As the app improves physician coding skills and thus enhances the ability of the physician to code accurately and quickly so he or she can then turn his or her attention to more pressing matters, the app meets the criterion that its purpose is educational and benefits science and the public. There is no benefit from keeping the physician in the dark regarding these codes. The physician is not going to buy or carry the whole AMA CPT® code book around, nor should he or she, given the very limited number of codes that need to be used in his or her line of practice. Certainly an actual written “cheat sheet” that is commonly used is considered fair use. The EP Coding app merely is a more intellegent version of that cheat sheet.

Regarding the commercial nature of the work, the app is priced at a very low cost (99 US cents) both to help defray the costs of development and to discourage downloading by those who don’t need access to these codes. EP Studios does generate some income, but has not generated a profit. Its main purpose is to help my colleagues by developing apps relevant to practicing medicine.

Thus with these points I believe the app qualifies for “fair use” by the first criterion.

The nature of the copyrighted work.

Despite their absolute necessity for the practice of medicine in the United States, the AMA has a copyright on the CPT® codes. This is despite the fact that the CPT® codes are also the level I codes required by Medicare for all providers to use. The AMA code books are expensive and license fees are required to use the codes as well. The amount may be debatable, but there is no doubt the AMA makes a lot of money from their codes. The codes are essentially a database, matching code numbers with descriptions, as well as information of what codes cover and what codes can and cannot be used together. Professional coders definitely need to know all the ins and outs of these codes, however physicians only need to know a subset of the codes. The EP Coding app uses some of the numbers and paraphrases the descriptions of the codes. As such it is not a direct copy, other than of the numbers. Numbers as such may not be subject to copyright. It should also be noted the the CPT® manual is largely a functional and not artistic work, and as such may be more subject to fair use than other less functional works.

The amount and substantiality of the portion used in relation to the copyrighted work as a whole.

A Google search for number of CPT codes gives various sites stating a number from 7800 to 8800. These figures are unsourced, but there is no doubt the number of CPT® codes in in the thousands. As of February 16, 2014 there are 73 codes in EP Coding. Assuming 7800 total codes, that is 73/7800, i.e. 0.9% of the total number of CPT® codes. This is a small percentage of codes. Note that the codes used in EP Coding are only codes for electrophysiology and are limited further to only non-surgical codes (i.e. excludes codes utilizing thoracotomy). In addition codes for office visits, hospital visits, and device checks are not included. The text of the descriptions is not copied from the AMA manuals, but is a paraphrase. Thus the amount of text copied is limited to a small subset of the code numbers. The ideas associated with these numbers are used, but not copied directly. Note that copyright protects literal text, but not the ideas underlying the text. Per the US Copyright Office:

“Copyright does not protect facts, ideas, systems, or methods of operation, although it may protect the way these things are expressed.”

In addition, most if not all of the information in this app is readily available online. For example this article outlines how to code EP procedures.

The effect of the use upon the potential market for or value of the copyrighted work.

EP Coding is intended for physicians, who are not the intended audience of the AMA documentation. That audience is made up of professional coders. EP Coding is more akin to a cheat sheet than a work competing with the AMA code book. Physicians are not likely to purchase the AMA book whether or not they use EP Coding. Coders cannot substitute EP Coding for the AMA book. Thus there is no real competition between the app and the AMA copyrighted works.

In summary, I believe that use of CPT® codes in a limited way in the context of the mobile app EP Coding meets all 4 criteria for fair use under US Copyright law.