This memo revises Memo Series DCS 95-34 regarding HIV testing of foster and adopted children based on changes to ss. 48.371 and 938.371, Stats.
This memo offers guidance to county agencies and licensed child placing agencies regarding human immunodeficiency virus (HIV) testing of infants and children being placed in a foster or adoptive home. The guidelines and procedures which follow are required policy and procedure for regional Direct Services adoption staff and for contract services provided by licensed agencies with a purchase of service arrangement with the Department to place children for adoption.
Routine testing of children for immunodeficiency prior to placement into a foster or adoptive home is not recommended. To make an informed decision regarding whether or not HIV testing should be performed, a complete social, medical and sexual history should be obtained from the child and both parents. The reason(s) for testing should be based on concerns about the well-being of the child. Decisions regarding HIV testing will need to be made on a case-by-case basis.
Circumstances When Testing Should Be Considered
Informed Consent for Testing
Informed consent for testing means consent in writing, on an informed consent testing form, by the subject of the test. The intent of s. 252.15, Stats. is to allow consent to rest with the subject of the test. For children under the age of 14, this means consent from the parent or legal guardian.
The legal guardian is the parent of the child, unless the court has appointed an alternate guardian as a result of a termination of parental rights or a Chapter 880 proceeding. A custodial agency is not a legal guardian (i.e., legal custody is not guardianship).
For children age 14 or older, consent must be obtained from the child.
Agencies should obtain written consent forms designed for HIV testing. Consent for HIV testing is not covered by a general release form.
Neither agencies nor out-of-home care providers may utilize "home" tests for HIV.
In the event that a child's legal guardian or the child (age 14 or older) is unable or unwilling to provide consent, or when the child is involved in a proceeding under s. 938.12 or s. 938.13(12), Stats., in which the child is alleged to have violated s. 940.225, 948.02, 948.025, 948.05 or 948.06, agencies are urged to seek legal consultation under s. 48.296, Stats.
Obtaining and Releasing the Results of HIV Tests
HIV test results can be disclosed only to persons or organizations as specified in s. 252.15, Stats. The Department and county agencies may obtain HIV test results if the test was administered to a child:
In addition, HIV test results may be disclosed to:
If the parent, legal guardian or child (age 14 or older) has consented to testing, the agency that placed the child or arranged for the placement of the child shall provide the foster parent, treatment foster parent or operator of the group home or child caring institution with the test results at the time of placement. If the information is subsequently received, test results shall be provided as soon as possible, but not later than two (2) working days after the agency receives such information (Ref. ss. 48.371(1) and 938.371 (1), Stats.). Disclosure of HIV tests to the foster parent, treatment foster parent or operator of the group home or child caring institution is permissible without the consent of the child or the child's parent or guardian. The agency must notify the out-of-home care provider about the confidentiality requirements under s. 252.15(6), Stats.
Foster and Adoptive Home Resources
Infants and children with acquired immunodeficiency syndrome (AIDS) and HIV infection have special needs. Therefore, the Department and other agencies should recruit, develop and sustain foster and adoptive families who are willing to care for these children and who live in reasonable proximity to appropriate medical facilities. Each agency should develop an inventory of local resources useful in the care of children with AIDS and HIV infection. In addition to being provided with extensive training on caring for infants and children with AIDS and HIV infection, these families should receive a monthly uniform foster care rate or adoption assistance level which considers the seriousness of the child's condition.
Care of Infants and Young Children Who Are HIV Positive: A Guide for Families and Caregivers is useful as a resource. It is available from:
Agency staff are also encouraged to contact the child's physician, the local public health agency, or local AIDS support group for additional and updated information.