CHLPI Experts Highlight How New HHS Funding Conditions Conflict with Social Security Act

The Centers for Medicare & Medicaid Services (CMS) at the Department of Health and Human Services (HHS) today proposed a rule to prohibit gender affirming care (referred to as sex-rejecting procedures (SRPs)) for children in Medicare and Medicaid certified hospitals.

This proposed rule would revise the requirements that Medicare and Medicaid certified hospitals must meet to participate in the Medicare and Medicaid programs. The revisions to the requirements would prohibit hospitals from providing gender affirming care to underage patients.

Carmel Shachar, Julia Lynch and Kevin Costello in a September, 2025 JAMA Viewpoint article “Federal Funding Conditions Threaten Gender-Affirming Care Access and Physician Autonomy” argued that using funding conditions in this way violates the explicit requirement in the Social Security Act that the federal government not use Medicare and Medicaid to control medical practice. They highlight several concerns:

1. Violation of Statutory Authority

The authors argued that the administration is overstepping the legal boundaries set by Congress in the Social Security Act. The law explicitly forbids federal officials from interfering in the “practice of medicine” or the “diagnosis and treatment” of individual patients. While the Department of Health and Human Services (HHS) can set “health and safety” standards, these are historically administrative or operational (like handwashing protocols). The authors argue these clauses cannot be used as a pretext to ban specific medical treatments. Usually, if Medicare won’t pay for a service (a coverage decision), a doctor can still provide it to private-pay patients. This executive action is different: it threatens to pull all federal funding from an institution if they provide the care at all, even using private funds.

2. Contradiction of Supreme Court Precedent

The authors used the case Biden v. Missouri (regarding COVID-19 vaccine mandates) to illustrate the limits of federal power. The Court allowed vaccine mandates because they found that vaccination of healthcare workers against COVID–19 was “necessary for the health and safety of individuals to whom care and services are furnished.” The authors argue that banning a specific medical service does not fit this tradition. They suggest that, based on the Court’s logic, the administration cannot regulate the substance of medical care without explicit permission from Congress.

3. Erosion of Federalism and State Rights

The authors highlighted a looming “state vs. federal” legal crisis, noting that states traditionally have the right to offer benefits beyond federal baselines. Some states (like New York) have anti-discrimination laws that require hospitals to provide this care. The executive order puts hospitals in an impossible “catch-22”: lose federal funding by following state law, or face state prosecution by following the federal order.

4. The Threat to Medical Autonomy

A major concern is the long-term impact of the order on the medical profession. The authors argued that clinical decisions should be made by doctors based on evidence and consensus, not by political figures based on policy preferences. If the executive branch can ban one type of care via funding conditions, it opens the door for the federal government to seize control over other controversial or politicized areas of medicine in the future.

Read the full article: Federal Funding Conditions Threaten Gender-Affirming Care Access and Physician Autonomy | Law and Medicine | JAMA | JAMA Network