---
kind: "section"
citation: "42 C.F.R. § 3.538"
title: "42"
number: "3.538"
heading: "Witnesses."
url: "https://uscodex.org/cfr/42/3.538"
---

# §3.538. Witnesses.

- (a) Except as provided in [paragraph (b)](#b) of this section, testimony at the hearing must be given orally by witnesses under oath or affirmation.
- (b) At the discretion of the ALJ, testimony of witnesses other than the testimony of expert witnesses may be admitted in the form of a written statement. The ALJ may, at his or her discretion, admit prior sworn testimony of experts that has been subject to adverse examination, such as a deposition or trial testimony. Any such written statement must be provided to the other party, along with the last known address of the witness, in a manner that allows sufficient time for the other party to subpoena the witness for cross-examination at the hearing. Prior written statements of witnesses proposed to testify at the hearing must be exchanged as provided in [§ 3.518](/cfr/42/3.518.md).
- (c) The ALJ must exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to:
  - (1) Make the interrogation and presentation effective for the ascertainment of the truth;
  - (2) Avoid repetition or needless consumption of time; and
  - (3) **Protect witnesses from harassment or undue embarrassment.**
- (d) The ALJ must permit the parties to conduct cross-examination of witnesses as may be required for a full and true disclosure of the facts.
- (e) The ALJ may order witnesses excluded so that they cannot hear the testimony of other witnesses, except that the ALJ may not order to be excluded—
  - (1) A party who is a natural person;
  - (2) In the case of a party that is not a natural person, the officer or employee of the party appearing for the entity pro se or designated as the party's representative; or
  - (3) A natural person whose presence is shown by a party to be essential to the presentation of its case, including a person engaged in assisting the attorney for the Secretary.

## Notes

### Authority

Authority: 42 U.S.C. 216, 299b-21 through 299b-26; 42 U.S.C. 299c-6.

### Source

Source: 73 FR 70796, Nov. 21, 2008, unless otherwise noted.