Hi Everyone
I think the most fundamental reason for the reversal is being missed. Section 1801 of the Social Security Act, now 42 U.S.C. § 1395, limits the federal government's power to use Medicare to control the practice of medicine or how medical services are provided.
This proposed rule was not simply saying that Medicare or Medicaid would not pay for a certain treatment. It threatened hospitals with the loss of all Medicare and Medicaid funding if their doctors continued providing that treatment. That could be seen as the federal government using funding to take control of medical decisions that the law leaves to doctors and hospitals.
The administration tried to get around this by claiming that gender-affirming care was not legitimate medical care. However major medical organisations opposed that claim and thousands of public comments placed the legal and medical problems directly into the official record.
Medicare and Medicaid participation rules have traditionally dealt with matters such as hospital safety, staffing and procedures. They have not normally been used to ban a particular treatment for a particular diagnosis. This made the proposal look less like an ordinary funding condition and more like an attempt to control medical practice through the threat of losing federal funding.
The government has not admitted that this law caused the reversal. Still it seems more than likely that the rule was withdrawn because it exceeded federal authority and would have been difficult to defend in court. The public opposition mattered because it helped expose that weakness.
The law may have provided the weakness but public pressure forced that weakness into the open.
People Power!
Best Wishes Always
Sarah B
Global Moderator
