The Latest Missives on Trans Care: HHS, CMS Press Providers to Restrict Services for Youth

Editor: Patti Boozang and Amanda Eisenberg
Authors: Julian Polaris, Elizabeth Dervan and Bryant Torres

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tl;dr

• Leaders of the Department of Health and Human Services (HHS) and the Centers for Medicare and Medicaid Services (CMS) issued letters on May 28 that urged health care providers and other stakeholders like medical boards to discontinue medications and surgical care for transgender youth. The letters also requested information within 30 days from certain hospitals that offer these services.

• The letters reflect the Trump administration’s continued implementation of a Jan. 28 executive order (EO) that directs agencies to work toward eliminating access to care for trans youth under the age of 19. Since the EO was issued, the administration has taken a number of steps to push for restrictions, such as suggesting limits on Medicaid coverage, updating guidance on whistleblower protections, and outlining the administration’s perspective on the clinical evidence and ethics of gender affirming care (GAC) for trans kids, which numerous physician groups have opposed.

• Many states continue to authorize licensed providers of gender-affirming medications and surgeries to youth (although surgeries for youth remain rare). Such services remain covered under some Medicaid programs and many private plans. Yet, HHS’ latest letters include the Trump administration’s sharpest language to date — instructing providers to cease offering gender-affirming medications and surgeries to youth.

The 80 Million Impact

The letters exhorting providers to eliminate health care services and access is the latest in a series of efforts by the Trump administration to end treatment access for transgender youth. Like prior communications, the administration’s letters don’t announce any new legal requirements for health care providers, payors or other entities. HHS continues to signal the possibility of future policymaking or enforcement actions without identifying a legal basis under which CMS could penalize a provider for services rendered in accordance with federal and state law. As such, it appears that the administration seeks to deter risk-adverse providers from offering gender-affirming care (GAC) without a change to federal policy, and any professionals who do so are likely to be challenged in court.

The HHS letter, which outlined the administration’s stance on transgender youth treatment, urged providers, risk managers and medical boards to update their “treatment protocols and training for care for children and adolescents with gender dysphoria” in alignment with HHS’ May report, per a post on X from HHS Secretary Robert F. Kennedy Jr. The May report reiterates the Trump administration’s stance that transgender youth should receive only mental health services and not gender-affirming medications or surgery, which major professional organizations have opposed. The American Academy of Pediatrics added that HHS’ May report “misrepresents the current medical consensus and fails to reflect the realities of pediatric care.”

Although the most recent letter says that HHS “expects” providers to modify their policies, it doesn’t cite a legal basis for enforcing that expectation. Rather, the letter previews that “HHS may soon undertake new policies and oversight actions, consistent with applicable law, to ensure the protection of children, and to hold providers that harm children accountable.”

HHS, for context, neither regulates the practice of medicine nor has direct oversight authority over state medical boards. That said, state legislators or agency officials who are aligned with the administration’s policy states on GAC may cite to these statements as a basis for imposing new restrictions under state law (an option available to them even before this latest letter). Still, the agency regulates federal standards for provider participation in Medicare and Medicaid, as well as the terms of HHS-administered grants.

On the same day as HHS’ letter, CMS Administrator Dr. Mehmet Oz issued a letter to select (unspecified) hospitals requesting information about their provision of gender-affirming medications or surgeries to transgender youth. While CMS’ press release describes the letter as the launch of a targeted “oversight initiative,” the letter indicates it was issued “as part of CMS’ standard healthcare oversight activities.”

Pointing to HHS’s May report, CMS expresses “serious concerns with medical interventions for gender dysphoria in children.” Based on this, “[c]onsistent with CMS’s obligations to ensure baseline quality standards at institutions participating in the Medicare and Medicaid programs,” CMS asks recipient hospitals to provide the following information within 30 days:

• Policies on informed consent for children, including whether parental involvement is mandatory. CMS’ letter does not mention that informed consent — including a minor’s ability to consent to services without parental involvement — is primarily regulated at the state level. In rare instances, federal regulations establish heightened consent standards for specific types of services under specific programs, such as sterilizations covered by the Medicaid program. However, no such federal requirements exist for trans youth GAC.

• Descriptions of any planned updates to clinical guidelines in light of HHS’ May report. Neither HHS’ May report nor any other federal communications to date expressly directed providers to change their clinical practice or discontinue the provision of gender-affirming services, as long as these services remain legal under state law and, if applicable, covered by the patient’s health care payor.

• Policies on adverse events related to these services, “particularly children who later look to detransition.” Although not discussed in CMS’ letter, hospitals (and certain other provider types) are obligated under existing federal and state requirements to track and report various types of adverse events. And although federal law and regulations define specific reporting requirements for certain services (e.g., provider-preventable conditions, patient outcomes for total hip and knee replacement), no such targeted federal requirements currently exist for gender-affirming medications or surgeries.

• Certain financial information related to gender-affirming medications and surgeries for youth “paid, in whole or in part, by the federal government,” including billing codes used, as well as revenues (recent and projected) and profit margins for these service lines, at the facility and provider level.

It is not clear how CMS will use this information, especially given that coverage and treatment requirements related to GAC have not changed. CMS also didn’t cite any legal basis for requesting this information. Nonetheless, CMS’ letter indicates a step toward targeted, provider-specific oversight activities related to treatment for transgender youth.

The Bottom Line

Last week’s letters reflect the Trump administration’s continued focus on restricting or ban GAC for transgender youth, as well as the tactic of previewing future policy changes or enforcement actions without announcing any policy reforms with immediate legal consequences. Since President Trump took office, providers offering these services have been in a challenging position, seeking to avoid legal risk under ambiguous federal pronouncements without unnecessarily shutting down services if they’re not compelled to do so, particularly when doing so might create risk under state nondiscrimination requirements. Additionally, beyond the administration, similar efforts are moving through Congress: The reconciliation vehicle with the Senate would ban federal funding for Medicaid or Marketplace coverage of gender-affirming services for patients of any age, including adults.

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