Back in 2019, several upstate New York hospice providers serving rural counties, including Chenango, Montgomery, Oneida and Onondaga, successfully fended off an incursion into their jurisdiction by a new kind of health care collaboration. The New York state Department of Health (DOH) had approved a request by the Bassett Healthcare Network and Helios Care for a regulatory waiver under the Hospital-Home Care-Physician Collaboration Program under Public Health Law 2805-x.

The law was intended to promote innovative collaborations in health care.

According to Kara Ulasewicz Travis, president and CEO of Mountain Valley Hospice & Palliative Care (MVHPC) that serves Hamilton, Fulton, Montgomery and Saratoga counties, and a member of the Board of Trustees of the Hospice & Palliative Care Association of New York State (HPCANYS), the already-existing hospices serving the same rural regions pushed back and the new venture was put on the back burner. 

Fast forward to December 2023. The same organizations — Bassett Healthcare Network and Helios — were given the green light by DOH to form a new collaboration which allowed Helios to expand service into two counties — Herkimer and Chenango — where licensed quality-driven hospices have been meeting the needs of their communities for decades.

This time, the DOH required no upfront Certificate of Need (CON) application for the collaboration. Instead, the DOH granted the application a 2805-x regulatory waiver, which effectively waives the CON statute and, according to Travis, ignores the intent of the Legislature in enacting the law.

“What [the 2805-x waiver] does is focus on hospitals, home care and physician collaborations in communities, but such collaborations are particularly detrimental to rural communities when no CON application or public notice are required,” Travis said. 

Travis and HPCANYS argue that the waiver as it is now being currently interpreted appears to circumvent the Certificate of Need (CON) process which governs where health care facilities are sited, among other things. 

Among the objectives of the CON process are to promote delivery of high-quality health care that is aligned with community need.


After responding to a reporter’s questions about 2805-x and whether it allows the agency to waive the CON, DOH appears to have changed its position. 

“DOH is requiring a Certificate of Need and an application will have to be submitted. The Hospital-Home Care-Physician Collaborative is a demonstration intended for innovation in care models and expanded access to needed services.”


“All projects that involve a request to waive the Certificate of Need will go before the Public Health and Health Planning Council, which will allow for public comment.”  

DOH’s full response is below. It’s unclear what this change will mean for the Helios-Bassett collaboration.


Dan Ayres, a former hospital CEO and the current president and CEO of Helios Care, told Capital Tonight that the Helios-Bassett collaboration was developed under New York’s Delivery System Reform Incentive Payment Program (DSRIP), which supports new and innovative models of health care delivery. 

“This was a demonstration model. (We were) given this 2805-x waiver because it was showing an initiative that could better improve care and reduce costs,” Ayres told Capital Tonight. “We will, however, need to submit a full CON as a part of this waiver. So, the waiver is for three years with our ability to demonstrate improved care and improved hospice utilization.”

Of the two hospices affected by the Bassett-Helios collaboration, Hospice and Palliative Care of Chenango County, operating since 1991, has been particularly impacted, according to Travis.

“It’s more than just competing over monetary resources. During a workforce shortage, it’s staff resources as well,” Travis explained. “We’re also now vying for those same nurses, doctors, social workers, where we already had a very limited pool to available.”

Ayres acknowledges the issue. 

“Frankly, we have an operating model where we try to get the patient on the same day or within 24 hours. Yes, staffing is a problem. Staffing is a problem for everyone. In fact, we are actively recruiting right now,” Ayres said.

Ayres also argues that patients should have a choice when it comes to their end-of-life care.

“I believe all patients should have a choice,” Ayres said. “And if there was low utilization in some counties, how is it a problem for there to be more opportunities?”

According to HPCANYS, low hospice utilization in New York state is not the result of a lack of hospices — it is the result of poor health literacy, poor investments in workforce initiatives and a historical lack of support by the state.

Like Ayres, Kendall Johnson, the president of Hospice and Palliative Care of Chenango County, the hospice that is being directly impacted by the new collaboration, also believes choice is important in a state where hospice utilization rates are low, but that the Bassett-Helios venture may not be telling patients that there are other options.

“Anecdotally, we have heard from a couple of the patients that we’ve brought in and their families that if they were in a Bassett hospital, that Helios was presented as the only option,” Johnson said. 

Ayres doesn’t think that’s the case.

“Absolutely not,” he said. “Actually, we had a long discussion with Bassett about that. They still offer choices to their patients. Now, the fact that we have a nurse in the hospital ready to meet with them, that obviously gives us an advantage.”

While Travis acknowledges the CON process needs to be reformed and says that HPCANYS has alerted both the DOH and executive for years on the need for reforms of the CON methodology, she and other hospice providers and the communities they serve only learned about the new Bassett Healthcare Network-Helios Care collaboration when they read about it on a social media blog. No notice or opportunity to comment was provided, and the CON process was completely bypassed.

“There was a complete lack of transparency,” said Travis.

“That’s not true,” Ayres told Capital Tonight. “Because I did tell Kendall [Johnson, the CEO of the Chenango County hospice] that we were coming. I told her directly. So let that be what it may.”

But according to Johnson, while Ayres mentioned to her that Helios would be collaborating with Bassett, he made no mention that he would be operating outside of his catchment area and competing with the hospice that she runs.

Since HPCANYS alerted DOH of their concerns, Gov. Kathy Hochul included language to legitimize the expansion of the 2805-x waiver in her executive budget proposal. The Legislature's one-house budget proposals rejected the governor’s language, but neither the Senate nor Assembly included language clarifying the scope of law.

HPCANYS’ Government Affairs and Policy Director, Cheryl A. Kraus, Esq., states, “The legislature never intended for the law to be used as a means to avoid the CON process.”

HPCANYS is now focusing its advocacy efforts on a bill drafted by the association that was introduced by Assembly Health Committee Chair Amy Paulin.

Without an amendment, the loophole in the law will deprive existing facilities of due process, according to both Cheryl Kraus and Kara Travis. They also claim it deprives health care consumers of services aligned with community need, creates health care disparities, and exacerbates issues involving social determinants of health that the CON process was designed to prevent.

“PHL 2805-x must align with the State Administrative Procedure Act (SAPA) to require public notification and opportunity to comment when an application is made for a regulatory waiver, and to ensure that any such application meets applicable CON requirements,” according to Kraus.

HPCANYS continues to advocate to ensure that the expansion of this law is excluded from the final budget. The association acknowledges that the law has a “noble intent” but is now being interpreted to circumvent the CON process for reasons that are highly suspect, according to Kraus.

HPCANYS wants any 2805-x waiver application to go through a public comment period, and through the statutorily required CON process.

“Time will tell if our objections to the recently expanded interpretation will need to be escalated. That would be incredibly unfortunate for a number of reasons,” Kraus said. “I also can’t imagine any member of the legislature being okay with DOH and the Executive waiving statutory requirements. Regulatory waivers are one thing, but unilaterally deciding to ignore requirements of a law the legislature passed is extremely dangerous precedent to be setting. That’s exactly what is being attempted in this case.”

Kraus also acknowledges this expanded interpretation of the waiver opens a back door for private equity to move into New York’s end-of-life care space.

“Looking at the fraud and abuse taking place in California, Nevada, Texas — all states who carelessly allowed expansion without consideration of the impact on the most vulnerable patients and their families in their time of need — it’s unconscionable that New York state would consider opening the door to the same human rights abuses. CMS (Centers for Medicare & Medicaid) is now attempting to implement guardrails in other states that New York has had in place for decades — why is the state now trying to dismantle the safeguards that have kept the bad actors out of our state? They are trying to get rid of policy that is actually working.”

One answer, according to Ayres, may be money.

“Right now, 70% of hospices in New York state lose money from operations, OK? That means they’re relying on donations and grants in order to remain operational. That model is not sustainable,” Ayres said. “Not unlike health care systems in New York state, you have to get to an economy of scale in order to be able to sustain yourself in order to provide this service to New Yorkers.”

HPCANYS doesn’t agree with Ayres.

“Some hospices have attempted to contract with hospitals. But hospitals should be contracting with the already existing licensed hospices that operate in the hospital and health systems’ service area,” Kraus said. “This (new model) defeats the community-based model of care, fosters a 'McHospice' mentality, and only eases the administrative burden of hospitals and health systems who would prefer to manage one contract vs. three or four.”

The more immediate question is whether Assemblymember Paulin’s bill will be included in the enacted budget due on April 1. 

“We are hoping that it is,” Travis said. “We are asking legislators to support the language and recognize what’s at stake… that’s critical in this process and for the survival of NYS hospices.


EDITOR'S NOTE: The DOH returned responses to Capital Tonight on several emailed questions. It appears that the agency is rethinking its approach to the 2805-x waiver and the Certificate of Need:

Q: Is it DOH’s intention to do an end-run around the Certificate of Need (CON) process in granting these waivers? If so why?

A: DOH is requiring a Certificate of Need and an application will have to be submitted. The Hospital-Home Care-Physician Collaborative is a demonstration intended for innovation in care models and expanded access to needed service.

Q: Why wasn’t notice provided to both the licensed hospices impacted by the waiver and members of the community those hospices serve when Bassett & Helios opened up?  

A: HPCANYS’ members reportedly found out through a social media blog after the waiver was approved.  Notice will be provided through the public posting of projects going before the Public Health and Health Planning Council, which has the authority to review and approve or deny projects, including 2805-x Hospital-Home Care-Physician Collaborations designed to improve access to care. 

Q: If bypassing CON wasn’t DOH’s intent, how does DOH plan to proceed knowing that this is an unintended consequence and while work is being done to reform the CON methodology?

A: All projects that involve a request to waive the Certificate of Need will go before the Public Health and Health Planning Council, which will allow for public comment.

Q: How many pending 2805-x waiver applications are there?  And where in NY are they being considered?  

A: There is one pending 2805-x application the Home Care Association of New York State and the Iroquois Healthcare Association intended to cover 5 collaboratives across upstate New York.  Approval cannot occur, however, until complete details for each project, including participants, roles of each participating provider, goals of the demonstration, and workflow are received and reviewed.  Additionally, approval is contingent upon a CON application if there is any change in the geographic reach of any participating provider, as well as submission of quality metrics and compliance with all scope of practice requirements.

Q: HPCANYS sent a letter to both Commissioner McDonald and Asst Commissioner Adam Herbst in January 2024 asking these questions, but never heard back. Can DOH respond now?

A: DOH is aware of the need for more services and supports for patients and their families, and will continue to work with HPCANYS, hospitals, hospices and other providers throughout the State to ensure informed consent as well as timely access to high quality services.