On December 18, 2025, the Centers for Medicare & Medicaid Services (“CMS”) issued two proposed rules aimed at limiting provision of gender-affirming care to minors (each a “Proposed Rule” and, collectively, the “Proposed Rules”).
- The first rule would add a new Condition of Participation (“CoP”), prohibiting a hospital from performing “sex-rejecting procedures” on minors, in order to participate in the Medicare and Medicaid programs.
- The second rule prohibits state Medicaid and CHIP agencies from covering “sex-rejecting procedures” on minors.
The Proposed Rules define “sex-rejecting procedures” to mean “any pharmaceutical or surgical intervention that attempts to align a child’s physical appearance or body with an asserted identity that differs from the child’s sex by either of the following: (1) Intentionally disrupting or suppressing the normal development of natural biological functions, including primary or secondary sex-based traits; or (2) Intentionally altering a child’s physical appearance or body, including amputating, minimizing or destroying primary or secondary sex-based traits such as the sexual and reproductive organs.”
The definition of “sex-rejecting procedure” does not include procedures intended: “(i) To treat a child with a medically verifiable disorder of sexual development; (ii) For purposes other than attempting to align a child’s physical appearance or body with an asserted identity that differs from the child’s sex; or (iii) To treat complications, including any infection, injury, disease, or disorder that has been caused by or exacerbated by the performance of sex-rejecting procedure(s).” Note that “medically verifiable disorder of sexual development” is not defined in the Proposed Rules.
Proposed CoP Prohibiting Gender-Affirming Care for Minors
The CoPs are requirements that hospitals must meet in order to participate in and receive funding from Medicare and Medicaid. If the proposed CoP is finalized, Medicare and Medicaid-participating hospitals—which includes the vast majority of hospitals across the country—would be prohibited from providing medication and surgical intervention to minors for the purpose of gender-affirming care.
A violation of the CoPs can result in monetary sanctions, exclusion from Medicare and Medicaid and, potentially, False Claims Act violations.
Proposed Prohibition of Use of State Medicaid and CHIP Funds for Gender-Affirming Care for Minors
Currently, around half of state Medicaid programs explicitly cover gender-affirming care in certain circumstances, and a number of other state Medicaid programs are silent on or have unclear policies regarding coverage of gender-affirming care for minors and/or all patients. This Proposed Rule would require all state Medicaid and CHIP programs, regardless of state law governing provision of gender-affirming care to minors, to adopt rules explicitly prohibiting payment for “sex-rejecting procedures” for minors (defined as persons under age 18 for Medicaid purposes and persons under age 19 for CHIP purposes).
Practical Takeaways
- Stay Informed: Continue to check Hall Render’s website for updates on the Proposed Rules, as well as related information regarding provision of gender-affirming care to minors.
- Communicate: Maintain open communication with providers and clinical leadership to ensure all parties are aware of ongoing legal and administrative challenges to provision of gender-affirming care to minors, and how such challenges may affect their practices.
- Work Closely with Counsel: Work with legal counsel to appropriately assess the risks associated with provision of care that may fall within the scope of these Proposed Rules, other federal action and state laws.
- Consider Submitting Comments: CMS will accept comments on the Proposed Rules until 5:00 PM ET, February 17, 2026. CMS provides instructions for submitting comments at the beginning of each Proposed Rule. Please contact Hall Render to assist with drafting or submitting your comments.
If you have questions regarding the Proposed Rule, other federal and state law action governing provision of gender-affirming care to minors or the litigation related thereto, please contact:
- Jennifer Skeels at jskeels@hallrender.com or (317) 977-1497;
- Cait Bell-Butterfield at cbell-butterfield@hallrender.com or (919) 228-2408; or
- Your primary Hall Render contact.
Hall Render blog posts and articles are intended for informational purposes only. For ethical reasons, Hall Render attorneys cannot—outside of an attorney-client relationship—answer specific questions that would be legal advice.
