1. (a) Who must be tested. TDPRS must ensure that children in the department's conservatorship are tested for HIV antibodies as specified in this section whenever TDPRS discovers that any of the following criteria are satisfied:

   1. (1) the child faces a high risk of HIV infection for any of the reasons specified in subsections (b) or (c) of this section;
   2. (2) the child has been sexually abused, and the abuse involved vaginal or anal intercourse or oral sex;
   3. (3) a physician's physical examination indicates that the child has symptoms of acquired immune deficiency syndrome (AIDS);
   4. (4) a physician makes a written recommendation that the child be tested; or
   5. (5) the child asks to be tested.

2. (b) Children at risk from birth. TDPRS regards a child as having a high risk of HIV infection from birth if, at the time of the child's birth, there is reason to believe that the child's mother:

   1. (1) is infected with HIV (based on the positive results of an HIV-antibodies test performed on the mother, or on the mother's development of AIDS);
   2. (2) has engaged in vaginal or anal intercourse or in oral sex with someone who has AIDS or who has tested positive for HIV antibodies;
   3. (3) has engaged in vaginal or anal intercourse or in oral sex with a male who has had sexual relations with another male;
   4. (4) has a history of intravenous drug abuse;
   5. (5) has abused illegal or prescription drugs to a degree that significantly increases the likelihood that she has engaged in any of the other high-risk behaviors listed in this subsection;
   6. (6) has engaged in vaginal or anal intercourse or in oral sex with someone who has a history of intravenous drug use;
   7. (7) received blood or blood products between January 1978 and March 1985;
   8. (8) has engaged in vaginal or anal intercourse or in oral sex with someone who received blood or blood products between January 1978 and March 1985; or
   9. (9) has engaged in prostitution or other sexual behavior that clearly involves a significant risk of HIV infection.

3. (c) Other children at risk. TDPRS regards a child as having a high risk of HIV infection for other reasons than those specified in subsection (b) of this section if the child:

   1. (1) has been involved in vaginal or anal intercourse or in oral sex with someone who has AIDS or who has tested positive for HIV antibodies;
   2. (2) has been involved in vaginal or anal intercourse or in oral sex with a male who has had sexual relations with another male;
   3. (3) is a male and has had sexual relations with another male;
   4. (4) is an intravenous drug user;
   5. (5) has been involved in vaginal or anal intercourse or in oral sex with an intravenous drug user;
   6. (6) received blood or blood products between January 1978 and March 1985;
   7. (7) has been involved in vaginal or anal intercourse or in oral sex with someone who received blood or blood products between January 1978 and March 1985; or
   8. (8) has engaged in prostitution or other sexual behavior that clearly involves a significant risk of HIV infection.

4. (d) Frequency of testing.

   1. (1) Children. Except as specified for infants in paragraph (2) of this subsection, whenever any of the criteria specified in subsection (a) of this section are satisfied, Child Protective Services must ensure that the child is tested for HIV antibodies at least three times at the following intervals:

      1. (A) when staff determine that a criterion has been satisfied;
      2. (B) six weeks after the initial test; and
      3. (C) six months after the initial test.

   2. (2) Infants. When an infant in the department's conservatorship faces a high risk of HIV infection from birth as specified in subsection (b) of this section, TDPRS must ensure that the infant is tested for HIV antibodies every three months until he is 15 months old. The purpose of the quarterly testing is to evaluate the infant for appropriate medical intervention as soon as possible. If the infant's test results are positive, TDPRS must ensure that the infant is tested again after he is 15 months old to determine whether the HIV antibodies previously detected in his system:

      1. (A) were received from his mother in-utero and have now been eliminated; or
      2. (B) were formed by his own body in response to an HIV infection of his own.

5. (e) Testing procedures and counseling.

   1. (1) TDPRS secures HIV-antibodies testing through local health departments, private physicians and clinics, and contracted family-planning agencies. When the results of a child's test are positive, the provider of the test must test the child again to confirm the initial results. The department must secure a written copy of the results of the confirming test before treating the child's test results as positive and arranging for ongoing counseling as specified in paragraphs (2) and (3) of this subsection.
   2. (2) TDPRS must ensure that every child who is tested for HIV antibodies receives counseling and information appropriate to his age and emotional development both before and after the testing, regardless of the results.

   3. (3) When a child's test results are positive, TDPRS must ensure:

      1. (A) that the child receives ongoing counseling and information appropriate to his age and emotional development after being tested; and
      2. (B) that the child's attending physician conducts appropriate additional tests or evaluations of the child's immune system in order to assess the child's need for treatment and medication.
6. (f) Waivers. TDPRS may waive any provision in this section that must be waived to address a particular child's needs or circumstances. The deputy director of the Office of Protective Services for Families and Children department must authorize each such waiver in advance in writing.

Source Note:The provisions of this §700.1401 adopted to be effective May 1, 1994, 19 TexReg 2125.