Medicare Advantage Trial Right

A Medicare Advantage trial right is one of the guaranteed-issue rights at 42 U.S.C. 1395ss(s)(3), under which a Medigap insurer may not refuse to sell a policy, may not price it on health status, and may not impose a pre-existing-condition exclusion. It exists so that someone who tries a Medicare Advantage plan and decides it was the wrong choice can return to Original Medicare and buy a supplement, rather than being locked out by medical underwriting. CMS uses the term in its own consumer guide: "You may also have a 'trial right' to try a Medicare Advantage Plan (Part C) and still buy a Medigap policy if you change your mind."

One point of vocabulary before the mechanics. The statute still says "Medicare+Choice," which was the program's name between 1997 and 2003. It means Medicare Advantage; nothing turns on the difference. And a trial right is not an enrollment period. It does not create a window in which to join or leave a Medicare Advantage plan; it governs what a Medigap insurer must sell once someone has left one.

There are two trial rights, they cover different people, and they open different doors. Clause (vi) of 1395ss(s)(3)(B) describes an individual who "upon first becoming eligible for benefits under part A at age 65, enrolls in a Medicare+Choice plan under part C or in a PACE program ... and disenrolls from such plan or such program by not later than 12 months after the effective date of such enrollment." That is the person who never had a supplement and chose Medicare Advantage at the outset. Subparagraph (C)(iii) gives them the widest right in the section: any Medicare supplemental policy, subject to the separate rule that closes Plans C and F to beneficiaries who became eligible from 2020 onward.

Clause (v) describes a different person: someone who "was enrolled under a medicare supplemental policy," then "terminates such enrollment and enrolls, for the first time," with a Medicare Advantage organization or a comparable plan, and terminates that enrollment "during any period within the first 12 months." Under subparagraph (C)(ii) they are entitled to the same policy they previously held, from the same issuer, if it is still available. If it is not, the statute limits them to a policy classified A, B, C or F, which CMS's consumer guide renders as Plan A, B, C, D, F or G because the same statute deems references to Plans C and F to be references to Plans D and G for a newly eligible beneficiary. Citing the narrower clause for someone who qualifies under clause (vi) understates a live federal right, and the two are easy to swap.

Both versions run on the same clock, and it opens before coverage ends. For a voluntary disenrollment, subparagraph (E)(iv) sets the application period as "beginning on the date that is 60 days before the effective date of the disenrollment and ending on the date that is 63 days after such effective date." Where the plan terminated the enrollment involuntarily, clause (ii) runs from the date the individual receives notice of termination to 63 days after the coverage ends. Applying inside the earlier part of the window is what avoids a gap between the Medicare Advantage plan ending and the Medigap policy starting. The plan or insurer that ends the coverage has its own duty under subparagraph (D) to tell the individual these rights exist.

The protection is broader than guaranteed issue alone, and that is the detail most often lost. Subparagraph (A) bars three separate things: denying or conditioning issuance, discriminating in the pricing of the policy on health status, claims experience, receipt of health care or medical condition, and imposing "an exclusion of benefits based on a preexisting condition." The third is what distinguishes a trial-right purchase from a purchase during the ordinary six-month Medigap open enrollment period, where the statute still permits an issuer to exclude benefits for a pre-existing condition during the policy's first six months.

Two limits worth knowing. First, subparagraph (F) provides that where an enrollment is involuntarily terminated inside the first twelve months and the individual enrolls again without a gap, the later enrollment can be treated as the initial one, so an interruption outside the person's control does not destroy the right. But no enrollment may be deemed initial "after the 2-year period beginning on the date on which the individual first enrolled." Second, everything above is federal law, which is a floor. States may give broader rights and several do; what a particular state adds is a question for its insurance department rather than something to generalize about.

1. Establish which clause you are under. If you took Medicare Advantage at first eligibility for Part A at 65 and never held a supplement, you are under clause (vi). If you dropped a Medigap policy to try Medicare Advantage for the first time, you are under clause (v).

2. Check the twelve-month test. The right depends on disenrolling no later than twelve months after the effective date of the Medicare Advantage enrollment, not twelve months after the decision to leave.

3. Arrange the disenrollment. Returning to Original Medicare happens through a Medicare enrollment window; the trial right does not create one. Fix the effective date first, because the application window is measured from it.

4. Apply for the Medigap policy inside the window. From 60 days before the effective date of disenrollment to 63 days after it. Send evidence of the termination or disenrollment date with the application, which the statute requires.

5. Choose from the policies your clause opens. Any policy sold in your state under clause (vi); your former policy from the same issuer, or a limited set of lettered plans, under clause (v).

6. Arrange drug coverage separately. A Medigap policy covers no outpatient prescriptions, so someone leaving a Medicare Advantage plan that bundled drug coverage needs a standalone Part D plan.

A hypothetical timeline. Sylvia turned 65 in March, enrolled in Part A and Part B, and joined a Medicare Advantage plan effective 1 April. In February of the following year she decides she wants Original Medicare and a supplement, and arranges to return to Original Medicare effective 1 March, eleven months after her Medicare Advantage coverage began and so inside the twelve-month test.

Her Medigap application window opens 60 days before 1 March and closes 63 days after it, which is a little over four months in total and most of it before her Medicare Advantage coverage actually ends. She applies in January, is accepted without medical underwriting because clause (vi) applies to her, and her Medigap policy takes effect 1 March with no gap and no pre-existing-condition exclusion. Had she waited until the 64th day after 1 March, the insurer would have been free to underwrite her application and could have declined it.

What it does for you

• Makes trying Medicare Advantage reversible, which for someone in good health at 65 is the difference between an experiment and a one-way door.
• Under clause (vi) it opens every Medigap policy sold in the state, not a restricted subset.
• It bars a pre-existing-condition exclusion outright, which the ordinary six-month open enrollment window does not.
• It reaches a PACE enrollment as well as a Medicare Advantage plan.

Its limits

• Twelve months is short, and the clock runs from the effective date of the Medicare Advantage enrollment rather than from anything the enrollee notices.
• Clause (v) is much narrower than clause (vi): a returning Medigap holder may be limited to their old policy or a small set of lettered plans.
• It is not an enrollment period, so leaving Medicare Advantage still depends on a separate Medicare window.
• Plans C and F remain closed to beneficiaries who became eligible for Medicare from 2020 onward, whatever the trial right says.
• The right is only as good as the paperwork: the application has to reach the insurer inside the window, with evidence of the disenrollment date.