I think you might be going about this backwards.
If the incident to requirements were not met, which it doesn't sound like they were, and the provider didn't see the patient....
Exactly where are they coming from on this? I would make them provide documentation showing that they can bill it under the ortho in this situation.
Otherwise it should stay as is and they will just have to take the loss in revenue.
You can also find cases on the OIG website under enforcement actions where out of network providers billed under in network providers to get paid and got busted.
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