Well, what do you know? The Obama administration has resurrected the topic of death panels—or, as one Pennsylvania man called them in an interview with me, the end-of-life committees. Those were the voluntary counseling sessions doctors were supposed to have with their older patients that delved into the thorny subjects of advance directives and treatment at the end of life. Former New York lieutenant governor Betsy McCaughey got tons of mileage out of that one, stirring the media pot about rationing and depriving old folks of needed care. When Sarah Palin joined in, people all over the country got so riled up you’d think the Salem witches had returned. Crafters of the health care bill quickly excised the provision that would have reimbursed doctors once every five years for offering such advice.

New York Times reporter Robert Pear surprised us on Christmas with his piece about how Obama’s Medicare agency had quietly issued a regulation—buried in the Medicare fee schedule and published in the Federal Register in early December—that would do what the health bill would have done and allow Medicare to pay doctors to offer this service. Under the new rule, they can get a fee for annual counseling as part of a beneficiary’s yearly exam.

What was interesting about Pear’s story was not that docs can get some extra cash for talking about health care proxies, but that the rule slipped through without the press noticing it, because the politicos didn’t want to discuss it just then. We know that way too often the press waits for some official announcement or pronouncement before pouncing on a story. This was a good example. Pear got a hold of an e-mail from Oregon Congressman Earl Blumenauer’s office, revealing that:

While we are very happy with the result, we won’t be shouting it from the rooftops because we aren’t out of the woods yet. This regulation could be modified or reversed especially if Republican leaders try to use this small provision to perpetuate the ‘death panel’ myth. We ask that you not broadcast this accomplishment out to any of your lists, even if they are ‘supporters’—e-mails can too easily be forwarded. Thus far, it seems that no press or blogs have discovered it. The longer this goes unnoticed, the better our chances of keeping it.

Health commentator Merrill Goozner faulted the Obama administration for “violating their own promise to run an open government,” saying they have “needlessly endangered a much-need policy.” Maybe. But we really shouldn’t expect government officials to broadcast their every move. The fault lies with the press for not looking more closely at the administration’s actions. I’d wager that most reporters don’t read the Federal Register, which tells a lot about how the government conducts its business. If reporters routinely examined the Federal Register for proposed rules, as hard as that might be, they’d learn about much more than the death panel rule, and then could do the digging necessary to expose what’s going on. The counseling rule is a fairly benign proposition. Other proposed regs have much graver consequences for the public.

At the end of December, I appeared on WNYC’s Brian Lehrer Show to discuss end-of-life care. Lehrer noted that the administration was now using regulations to do what the health bill originally proposed. “Is that democracy?” he asked. It’s what administrative agencies in state and federal government do all the time, I replied, and urged that the press do better at keeping people informed about these rules. Once a rule is issued, it’s the public’s turn to comment. All too often, the “public” means those industries and businesses affected by the rule, not men and women on the street. Unless the general public learns about the regs from the media or from some advocacy group, they are in the dark.

Press coverage of the proposed reg has been minimal, perhaps owing to the media’s holiday slowdown, or perhaps the issue’s potential for political controversy has run its course. A few outlets picked up the Times’s piece, but there was nothing like the media frenzy that struck in the summer of 2009. The government may simply start paying docs for counseling, or there may be a new round of death panel hysteria. But one thing is clear: the administration intends to use more rule-making procedures. That’s part of American democracy. Campaign Desk will be watching in the new year for media reports on what it is up to.

If you'd like to help CJR and win a chance at one of 10 free print subscriptions, take a brief survey for us here.

Trudy Lieberman is a fellow at the Center for Advancing Health and a longtime contributing editor to the Columbia Journalism Review. She is the lead writer for The Second Opinion, CJR’s healthcare desk, which is part of our United States Project on the coverage of politics and policy. Follow her on Twitter @Trudy_Lieberman.